I am about to take an unpopular stand, so brace yourselves: I fully support the U.S. Supreme Court’s recent decision in Citizens United v. FEC that allows corporate spending (in the form of advertisements and the like, not direct contributions to campaigns) in election seasons. Before anyone accuses me of helping Coors sponsor Colorado’s third congressional district, hear me out.
Most people do not know the term “corporation” applies to more groups than just for-profits. It includes nonprofits and unions, among others. In fact, the plaintiff in this case, Citizens United, is a nonprofit political advocacy organization, not a company. Until this decision, all corporations were censored in the month before a primary election and 60 days before a general election.
Professional fear-mongers across the country predict the absolute destruction of American democracy as a result of the lifting of this ban. However, there are two good reasons why their speculation is inaccurate. Twenty-six states currently have no laws restricting corporate spending on state elections. According to a 2004 Ethics Institute study that ranked the 10 most corrupt states in the country, only four were states without restrictions. Therefore, a correlation exists between restriction of spending and public corruption, not the other way around.
Secondly, this decision will not harm democracy because the right of the individual to make up his or her own mind and vote privately remains unaffected. Who cares if Coca-Cola makes a documentary supporting a candidate from Atlanta? The rest of us can still say, “Why would I want to vote for a candidate who wants to steal my money to give it to Coca-Cola?”
But even if you disagree, there is still reason to support this decision. If you think it is bad because it will give corporations undue political influence, you are claiming two things: The government should have the power to determine who is allowed to speak freely, and the Supreme Court should make rulings based on perceived policy impact rather than the Constitution. Both of these assumptions are far more dangerous to American democracy than corporate influence.
In his concurring opinion, Justice Antonin Scalia noted the First Amendment protects speech, not speakers. In other words, the right to say what you want (not to mention the restrictions on that right) is not determined by who you are, but what you say. This principle is an essential component of equality under the law, which in turn is necessary for democracy. Therefore, Scalia concluded, restricting corporate expenditures is unconstitutional because it singles out one form of speaker for censorship.
To say he is wrong — that Citizens United should not have been allowed to air their anti-Hillary Clinton documentary — is to say that the government should have the authority to silence the political speech of its citizens in the run-up to an election based on arbitrary criteria about the form in which the individuals speaking choose to associate. I cannot understand how opponents of the decision find that acceptable.
Also, opponents have said people should disapprove of Citizens United because it will hurt democracy. Think about that for a minute: They are claiming the nation’s highest judicial body, charged with interpreting the Constitution and checking the power of the other two branches, should base its decisions on guesses about policy impact, not legal precedent and constitutional scholarship. Furthermore, they ignore the possibility of Congress passing a constitutional amendment; if corporate spending does prove to be overwhelming, public opinion will demand action and corporate speech can be banned for good. Opponents favor subverting the rule of law for one policy, thereby effectively transferring lawmaking authority to nine unelected officials. Does anyone else think that is overkill?
Brian Davis is a graduate student in public policy. He can be reached at bdavis11 at umd dot edu.
