Politics & Society

CITIZENS UNITED/ 1. Supreme Court’s decision misunderstood

Richard Garnett

mercoledì 10 febbraio 2010

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.

CLICK BELOW >>

The court has — correctly, I think — emphasized, in a wide variety of contexts, that a central concern of its First Amendment doctrine should be preventing efforts by government to distort the content of public conversations, and especially of the political debate. Even well-meaning officials, who worry about the corrupting influence of money and about preserving opportunities for those without power to nevertheless be heard, cannot, at the end of the day, be trusted to decide how much speech is too much, or when one speaker has said enough, or which speakers are more authentic and representative than others.

And so, we should think about the First Amendment not only as something that is held and enjoyed by speakers — individuals and corporations alike — but also as a constraint on government regulation. The First Amendment is not just a right, it is also a rule — a rule that forbids attempts by officials to decide which political messages and speakers are desirable and which are not. In a society committed, as ours is, to the freedom of speech, it is the citizens who are charged with the responsibility of evaluating the persuasiveness and other merits of political arguments. Natural people are, of course, free to discount the advocacy of artificial ones, just as they are free to give short shrift to what they regard as the biased arguments of sports stars, pop singers, media moguls and grandstanding politicians. Governments, however, should not purport to make these decisions for us.

Reprinted with permission of Notre Dame Magazine