In the 1978 case First National Bank of Boston v. Bellotti, the Supreme Court held that a bank in Massachusetts had the right to spend money in order to persuade voters to reject a referendum that would authorize the state legislature to create a progressive income tax. One of the four dissenting justices in that case wrote with particular force that treating corporations as the equivalent of citizens for First Amendment purposes was not a sound interpretation of either the Constitution of the Court's own precedents. Rather, the Court should stick with its own previous argument that, with some specific and limited exceptions, the liberty protected by the Constitution "is the liberty of natural, not artificial, persons." This was particularly relevant to assessing claims that corporations have the same right to political speech as citizens:
It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist ? I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation.
Who was this free-thinking radical? None other than the Court's leading conservative of the time, William Rehnquist. The difference between Rehnquist's rhetoric and opinion issued by the Court yesterday in Citizens United v. FEC is striking indeed. While previously even some conservatives had been comfortable with long-standing restrictions on the ability of corporations and other economic organizations from engaging in campaign spending, the five most conservative members of the Roberts Court have now held that corporations have virtually the same rights as citizens when it comes to spending money on electioneering, prohibiting long-standing prohibitions on corporate campaign spending by state and federal legislatures. It also overruled one landmark precedent and parts of another to reach its decision. This evolution has disturbing implications for democracy, and also provides the latest example of a Supreme Court that is increasingly solicitous to the interests of big business.
There is, of course, nothing new about the Supreme Court favoring the legal claims advanced by corporations. Indeed, the contemporary power of the courts derives in substantial measure from measures taken by Gilded Era Republicans in Congress, who added personnel to and increased the jurisdiction of the federal courts under the (accurate) assumption that they would act against some state economic regulations and issue frequent injunctions against labor unions. Following the New Deal constitutional crisis, however, the Court began to broaden its rights protections to encompass more disadvantaged groups, while largely deferring to democratic legislatures on matters of economic regulation.
While the Court has not (and almost certainly never will) return to the era in which it refused to allow Congress to even ban the interstate shipment of goods made with child labor, since the resignation of Earl Warren in 1968, the Court has certainly become much more attentive to claims of corporate litigants. This is in large measure the result of a conscious campaign on the part of American business. The future Supreme Court Justice (and author of the First National Bank decision) Lewis Powell wrote a famous memo in 1971 urging the Chamber of Commerce to respond aggressively -- including in the courts -- to what he characterized as an "assault on the enterprise system."
The mobilization of business groups has been very successful. In the first term of the Roberts Court the Chamber of Congress prevailed in 13 of the 15 cases in which it filed an amicus brief. And while some of the Roberts Court's rulings have split the justices, others have not -- even the justices on the Court's relatively more "liberal" wing are much more conservative than their Warren Court counterparts.
Still, although it fits an increasingly common pattern, the Court's ruling in Citizens United was particularly dismaying, particularly to the extent to which it went well beyond the facts of the case to overrule two important precedents. The Court's assertion that the First Amendment cannot permit any distinction based on the "identity" of speakers (even artificial ones) is, for the reasons that Justice Rehnquist recognized, facile and unpersuasive. As Justice Stevens argued in his lengthy, sometimes brilliantly reasoned dissent, "[w]hile that glittering generality has rhetorical appeal, it is not a correct statement of the law." Indeed, "The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees." Indeed, all five members of the majority in Citizens United upheld a content-based restriction on student speech that would be concededly unconstitutional if applied to an ordinary citizen in 2007.
What's worse, of course, is that unlimited corporate spending on elections -- unlike, say, a student holding up a banner saying "Bong Hits 4 Jesus" -- has obvious inconsistencies with democratic values. Even if one were to assume for the sake of argument that corporations and citizens should be treated exactly alike for the purposes of the First Amendment, such rights have to be considered in unique context of elections. Central to liberal democracy is the idea that inevitable inequities in wealth should not be allowed to swamp the civic equality represented by elections. As The Media Consortium's Brian Beutler notes, Justice Kennedy's argument in the majority opinion that "appearance of influence or access will not cause the electorate to lose faith in this democracy" can only be read as black comedy.