CITIZENS UNITED/ 1. Supreme Court’s decision misunderstood

The Supreme Court’s recent decision in the Citizens United case — in which the court, by a 5-4 vote, struck down certain federal restrictions on “electioneering” and political advertising – has been widely criticized, but seems also to be widely misunderstood, or even misrepresented.

To some, the decision represents little more than a gift from the “conservative” justices to the Republican Party. In fact, there is nothing particularly “conservative” about the court majority’s view that the First Amendment should prevent the government from regulating the content of political debate and, what’s more, it is not at all clear that the decision will favor one party and its causes more than the other and its. Some corporations will find it in their interest to oppose new banking regulations, others will find it in their interest to support new funds for embryo-destructive research and “green” technologies; some look like the Sierra Club, others look like the Chamber of Commerce.

Other critics fear that the decision will open the (imagined) floodgates that formerly protected our politics from the baleful influence of “corporate” money, persuasion, and influence. As my colleague, Prof. Lloyd Mayer explains, though, these concerns are probably both premature and overstated. There is no way to keep money out of politics — nor is it clear that we should want to — and it could well be that the Citizens United decision will simply make more transparent what is already happening.

Still another line of attack, though, has been to charge that the court has, in Dr. Frankenstein-like fashion, confused artificial persons with real ones, that it has — as one political cartoon put it — substituted “We the Corporations” for the Constitution’s “We the People.” As Justice Stevens put it, in his (strongly) dissenting opinion, “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” So, why would the court think they enjoy the “freedom of speech” protected by the First Amendment?

We should think about the matter in another way. The “freedom of speech” is not merely something that people have or exercise individually, in order to express themselves or further their own projects. It is also a practice whereby people associate, affiliate and cooperate in pursuit of shared, long-term goals and goods. The court’s point in Citizens United is not that corporations are “the same as” people; it is, instead, that people often do, and long have, exercised the “freedom of speech” to challenge government, and convince their fellow citizens, using the corporate form. The fact that ideas enter the political conversation through one vehicle — the speech and advertising of associations, groups and corporations — does not make it less worthy of protection than ideas that are promoted by wealthy and powerful individuals such as Oprah Winfrey, Ted Turner or Curt Schilling.

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