Is Citizens United All that Bad?

“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential.” Citizens United v. FEC, 130 S.Ct. 876 (2010) (quoting Buckley v. Valeo, 96 S.Ct. 61

2 (1976)).

I think we can all agree on that statement. It was re-stated in the much discussed, and criticized, opinion by the Supreme Court in Citizens United. That opinion has been viewed by many as opening the floodgates of influence peddling by corporations and essentially making unlimited the influence that corporate money will have in elections. That much is true. But the case also affirms an important, and perhaps the only remaining, protection for citizens when it comes to campaign finance: disclosure.

The Citizens United case has been criticized for finding that “corporations are people”. But that’s a pretty simplistic and somewhat misleading view of what Citizens United actually says (sorry, Mitt Romney). It doesn’t really hold that corporations are equivalent to people, at least not in the sense that corporations can eat, sleep, fall in love, have babies, and then fall asleep again on the couch watching T.V. Instead, the Supreme Court relied upon its own substantial precedent in reaffirming that any attempts by the government to limit or influence political speech through measures that curb the means, methods, or content, or limit the timing of the speech and the speaker, must be prohibited under the First Amendment.

As explained in Citizens United, the extension of First Amendment protections to corporations is not new. Id. at 899. If the corporate form is the means through which political speech is transmitted, then the First Amendment says it cannot be limited, just as an individual’s political speech cannot be limited –“the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity”. Id. at 903.

Citizens United overruled an earlier case, Austin v. Michigan Chamber of Commerce, 110 S.Ct. 1391 (1990), which upheld a state ban on corporate campaign expenditures as a means to curb “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form”. Upon reconsideration of Austin, the Citizens United Court rejected the government’s “anti distortion” interest in protecting against the corrupting influence of money in politics.

To be sure, there is a lot in Citizens United not to like, and at times the Court appears woefully out of touch with the concerns of common citizens: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy”, id. at 910. Um, it does, and it will, thanks to you. Newt Gingrich’s presidential campaign recently received ten million dollars from a casino mogul and his wife. When someone gives a candidate ten million dollars to run for president, I would expect the candidate not only to give the donor unlimited access and influence over his policies, but also to ask precisely what type of mustard the donor would like on his sandwich so he can have a snack as he watches the candidate do his bidding.

However, crucially, the majority in Citizens United does not say that corporations and their benefactors are entitled to secrecy when they fund political speech. To the contrary, the Citizens United court upheld the portion of the law that requires disclosure of the group that funded the political advertisement at issue: “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Id. at 916.

I believe that portion of the Citizens United holding opens the door wide-open for laws that mandate the fullest possible disclosure regarding the source of political contributions, expenditures, and advertising, including the amount of the contributions and the identity of the individuals and associations that make and benefit from the expenditures.

While Citizens United may have held that corporations are people, they are not “We the People.”

If the downside of the First Amendment is that it protects the right of corporations to buy candidates, the rest of us are entitled to know exactly who is buying, and the price.