CITIZENS UNITED v. FEDERAL ELECTION COMMISSION

08-205.pdf (application/pdf Object) ... CITIZENS UNITED v. FEDERAL ELECTION COMMISSION

[January 21, 2010]
JUSTICE STEVENS, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurring in part and dissenting in part.

"...The conceit that corporations must be treated identically to natural persons in the politicalsphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

In the context of election to public office, the distinction between corporate and human speakers is significant.Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests mayconflict in fundamental respects with the interests ofeligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The majority’s approach to corporate electioneeringmarks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm., 459 U. S. 197, 209 (1982) (NRWC), and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id., at 209–210. The Court today rejects a century of history when it treats thedistinction between corporate and individual campaignspending as an invidious novelty born of Austin v. Michi-gan Chamber of Commerce, 494 U. S. 652 (1990). Relyinglargely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540
U. S. 93 (2003), FEC v. Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and California Medical Assn. v. FEC, 453 U. S. 182 (1981).

In his landmark concurrence in Ashwander v. TVA, 297 U. S. 288, 346 (1936), Justice Brandeis stressed the importance of adhering to rules the Court has “developed . . . for its own governance” when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall review the background of this case in some detail before explaining why the Court’sanalysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudencemore generally .1 I regret the length of what follows, but the importance and novelty of the Court’s opinion requirea full response. Although I concur in the Court’s decisionto sustain BCRA’s disclosure provisions and join Part IVof its opinion, I emphatically dissent from its principalholding. ...
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The Court’s ruling threatens to undermine the integrityof elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell, it is importantto explain why the Court should not be deciding that question. ...
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... Essentially,five Justices were unhappy with the limited nature of thecase before us, so they changed the case to give themselves an opportunity to change the law....
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This is not merely a technical defect in the Court’sdecision. The unnecessary resort to a facial inquiry“run[s] contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broaderthan is required by the precise facts to which it is to be applied.” ...
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... Our colleagues elsewhere trumpet “our duty ‘to say what the law is,’” even when our predecessors on the bench and our counterparts in Congress have interpreted the law differ-ently. ...
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... By this novel logic, virtually anysubmission could be reconceptualized as “a claim that the Government has violated my rights,” and it would then be available to the Court to entertain any conceivable issue that might be relevant to that claim’s disposition.. ..
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It is all the more distressing that our colleagues havemanufactured a facial challenge, because the parties have advanced numerous ways to resolve the case that would facilitate electioneering by nonprofit advocacy corporations such as Citizens United, without toppling statutesand precedents. Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “[I]f it is not necessary to decide more, it is necessary not to decide more,” ...
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The final principle of judicial process that the majority violates is the most transparent: stare decisis. I am not an absolutist when it comes to stare decisis, in the campaign finance area or in any other. No one is. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturningsettled doctrine. “[A] decision to overrule should rest onsome special reason over and above the belief that a prior case was wrongly decided.” ...

The Court’s central argument for why stare decisis ought to be trumped is that it does not like Austin. ...
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... and the majorityopinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court.Today’s ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather thanin the proclivities of individuals.” Vasquez v. Hillery, 474 U. S. 254, 265 (1986).
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The novelty of the Court’s procedural dereliction and itsapproach to stare decisis is matched by the novelty of itsruling on the merits. ...
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... But the majority’s incessanttalk of a “ban” aims at a straw man.
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... In short, the Court dramatically overstates its critiqueof identity-based distinctions, without ever explaining whycorporate identity demands the same treatment as individual identity. Only the most wooden approach to theFirst Amendment could justify the unprecedented line itseeks to draw.
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... The Court has it exactly backwards. It is today’s holding that is the radical departure from what had been settled First Amendment law. ...
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... Perhaps this is because there is not ascintilla of evidence to support the notion that anyone believed it would preclude regulatory distinctions based on the corporate form. To the extent that the Framers’ views are discernible and relevant to the disposition of this case,they would appear to cut strongly against the majority’sposition.

This is not only because the Framers and their contemporaries conceived of speech more narrowly than we now think of it, see Bork, Neutral Principles and Some FirstAmendment Problems, 47 Ind. L. J. 1, 22 (1971), but also because they held very different views about the nature of the First Amendment right and the role of corporations insociety. ... (“The word ‘soulless’ constantly recurs in debates over corporations. . . . Corporations, it was feared, could concentratethe worst urges of whole groups of men”). Thomas Jefferson famously fretted that corporations would subvert the Republic.54
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The Framers thus took it as a given that corporationscould be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had littletrouble distinguishing corporations from human beings,and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. ...
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As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of asponsor of electoral advocacy. ...
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... That conclusion certainly does not follow as a logical matter, and JUSTICE SCALIA fails to explain why the original public meaning leads it to follow as a matter of interpretation.
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... To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is.
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... First, those Justices were writing separately; which is to say, their positionfailed to command a majority. Prior to today, this was afact we found significant in evaluating precedents. ...
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The corporate/individual distinction was not questionedby the Court’s disposition, in 1986, ... It is worth remembering for present purposes that thefour MCFL dissenters, led by Chief Justice Rehnquist,thought the Court was carrying the First Amendment too far. ...Not a single Justice suggested that regulation of corporate political speech could be no more stringent than of speech by an individual. ...
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... For one thing, the Constitution does, in fact, permit numerous “restrictions on the speech of some in order toprevent a few from drowning out the many”: for example,restrictions on ballot access and on legislators’ floor time. ...
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... And whereas we have no evidence to support the notion that the Framers would have wanted corporations to havethe same rights as natural persons in the electoral context, we have ample evidence to suggest that they wouldhave been appalled by the evidence of corruption that Congress unearthed in developing BCRA and that theCourt today discounts to irrelevance. It is fair to say that“[t]he Framers were obsessed with corruption,” ...
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Rather than show any deference to a coordinate branchof Government, the majority thus rejects the anticorruption rationale without serious analysis.67 Today’s opinionprovides no clear rationale for being so dismissive of Congress, ... This possibility, the Court apparently believes, licenses it torun roughshod over Congress’ handiwork.
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... But it is the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment on this basis, without first confirming that the statute in question was intended to be, or will function as, a restraint on electoral competition. ...
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... The majority cavalierly ignores Congress’ factualfindings and its constitutional judgment: It acknowledgesthe validity of the interest in preventing corruption, but iteffectively discounts the value of that interest to zero. This is quite different from conscientious policing for impermissibly anticompetitive motive or effect in a sensitive First Amendment context. It is the denial of Congress’ authority to regulate corporate spending on elections.
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... Unlike voters in U. S. elections, corporations may be foreign controlled.70 ...
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It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” oftenserves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whomour Constitution was established.
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It is an interesting question “who” is even speakingwhen a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to bethe shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officersor directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporationmust make the decision to place the ad, but the idea that these individuals are thereby fostering their selfexpression or cultivating their critical faculties is fanciful.It is entirely possible that the corporation’s electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least.
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... and distort public debate in ways that undermine rather thanadvance the interests of listeners. The legal structure of corporations allows them to amass and deploy financialresources on a scale few natural persons can match. ... Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or nocorrelation” to the ideas of natural persons or to anybroader notion of the public good, 494 U. S., at 660. The opinions of real people may be marginalized. ...

In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate “domination” of electioneering, Austin, 494 U. S., at 659, can generate the impression thatcorporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increasedperception that large spenders “‘call the tune’” and areduced “‘willingness of voters to take part in democratic governance.’” McConnell ...
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The Court’s facile depiction of corporate electioneering assumes away all of these complexities. Our colleaguesridicule the idea of regulating expenditures based on“nothing more” than a fear that corporations have a special “ability to persuade,” ante, at 11 (opinion of ROBERTS, C. J.), as if corporations were our society’s ablest debatersand viewpoint-neutral laws such as §203 were created tosuppress their best arguments. In their haste to knock down yet another straw man, our colleagues simply ignorethe fundamental concerns of the Austin Court ...
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... Our colleagues have raised some interesting and difficult questions about Congress’ authority to regulate electioneering by the press, andabout how to define what constitutes the press. But that is not the case before us. Section 203 does not apply to media corporations, and even if it did, Citizens United isnot a media corporation. ...

... But the majority does not bother to consider such practical matters, or even to consult a record; it simplystipulates that “enlightened self-government” can ariseonly in the absence of regulation.
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The Court’s blinkered and aphoristic approach to theFirst Amendment may well promote corporate power atthe cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedlycripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.
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...The Court dismisses this interest on the ground thatabuses of shareholder money can be corrected “throughthe procedures of corporate democracy,” ... In practice, however, many corporate lawyers will tell you that “these rights are so limited as to be almost nonexis-tent,” given the internal authority wielded by boards and managers and the expansive protections afforded by the business judgment rule. ...
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