Citizens United In Context
This blogger has been absolutely flummoxed that Citizens United v. Federal Election Commission has remained the law of the land regarding federal election financing. 588 U.S. 310 (2010) It is such a deeply flawed decision and its promulgation by Justice Anthony Kennedy stands in wild derision of precedent and reasonable jurisprudence and raises a troubling question of the heavy influence on Justice Kennedy by factors outside our democracy and proud legal tradition. This blogger wrote a paper on Citizens United years ago with all the humblest ambitions of a law student endeavoring to understand a complicated decision. While Citizens United has remained deeply controversial, the failure of its legal underpinnings seem to remain unexplored in our news or political discourse.
While this blogger has deeply abiding respect for Justice Kennedy and his office generally, the Citizens United decision is singularly confounding in its lack of reasoned judicial investigation into the underlying precedent. It seems that Justice Kennedy, contrary to his usual care in examining decisions, must have just decided to let it fly loose for this decision. It is uncomprehensible how an otherwise accomplished jurist who has skillfully navigated the politics of our time with reasonable alacrity in considering the realities of modern politics with the deep traditions of our country could overlook both so flagrantly.
The impact of Citizens United has become so complete and pervading that we cannot ignore its major impact on our current democratic process. Citizens United has become inimical to public discourse regarding election tampering, as it has has been a harbinger for allowing Charles G. and David H. Koch tilted access into our political discourse. Or, as a more recent and pertinent example, has allowed billionaires such as Robert Mercer to control our political process, by enfranchising the current President, arguably in collusion with Russian oligarchs, and, can it be? Facebook and Twitter? In the dissemination of, what? Fake News? No. (We will see whether Special Prosecutor Robert Mueller is allowed to do his job or is steamrolled by an administration that has reportedly demanded "loyalty" of the independent functionaries of our government's justice system.)
It is in the context of this strange confluence of wealth and incompetence in national leadership that this blogger humbly submits his dated analysis of Citizens United. It was intended, at the time in December 2010, to be superceded by a discrediting analysis of much higher quality, and hence this blogger never sought its publication. At this point, though, it seems only proper to make a point that seems to be dimly illuminated in the increasingly politically flexible jurisprudence that seems to be influencing courts in our country.
Citizens United Analysis
No greater mistake, perhaps, has been recently made by the U.S. Supreme Court than in it's decision to allow unfettered corporate and private political contributions through its decision in Citizens United . That decision has haphazardly tipped the balance of democratic government in favor of money as the principal expression of political will over the individual voices of our citizens.
Justice Anthony Kennedy, in a wildly negligent misappropriation of judicial precedent, failed to examine the vigorous and intricate reasoning behind the previous Supreme Court decision of Buckley v. Valeo, 424 U.S. 1 (1976). Buckley provided a reasonable and thorough consideration of the impact of money as political speech. While the decision in Buckley was nuanced and thoughtful, Justice Kennedy inaccurately and grossly over-summarized the decision to support the absolute inclusion of corporate money as political speech.
Perhaps the most egregious mis-characterization of the Buckley decision is Justice Kennedy's conclusion that corporate entities enjoy the same rights as individual citizens. This also involves a mis-characterization of corporate access to Fourteenth Amendment due process under First National Bank of Boston v. Bellotti, 435 U.S. 765 (1979). This is a farcical and idiotic misunderstanding of the precedent relied upon in Buckley and Bellotti, which provided corporations due process for property rights based on a series of cases involving federal seizure of corporate lands to build railroads in the 1880s**. Giving corporations due process in their rights to property, specifically their land holdings, made sense, because part of the purpose of corporations was to hold land for shareholders. These civil war reconstruction-area concessions to the rights of corporations have no place or sense as applied broadly in our modern freedom of speech legal regime, but must be viewed as limited exceptions to restrictions on corporate person-hood as allowed for the purposes of delineating protections against federal appropriations in administering public works.
The right for corporations to make political statements, however, is understandibly outside their purpose, particularly as corporation shareholders may hold vastly different political views. This is one of the main reasons that, before Citizens United, corporations were heavily censured in exercising political speech. It is amazing that shareholder accountability (and fiduciary) lawsuits have not run rampant as a result of Citizens United. That exposure may remain one of the open sores and sources of corporate instability in the enforcement and implementation of Citizens United jurisprudence in the coming years, should the decision remain precedent. However, the lack of such litigation also serves as an indicator of the ease of access to political malfeasance and social imbalance facilitated by Citizens United.
Contrary to Justice Kennedy's decision, the full panoply of constitutional rights have never been so afforded to corporations. Rather, due process for corporations was limited to activities that were incident to the purpose of the corporation. This delineation and limitation of corporate rights was clearly established by our country's founders in the early history of the existence of corporate entities. This separation is clearly defined in The Trustees of Dartmouth College v. Woodward, and the limited existence of corporations has never been revisited in Supreme Court jurisprudence until the ham-handed, bewildered, and suspiciously inveigled decision of Justice Kennedy. 17 U.S. 518 (1819).
It is true that Buckley acknowledged the effect of money on political speech, thereby allowing for some "creep" of corporate purpose into political discourse. This was a limited hint, and did not entail a deep discussion of actual corporate rights under the 1st Amendment. However, Justice Kennedy leap-frogged across the Buckley decision to grab on its acknowledgment that money cannot be readily separated from speech, to afford full 1st Amendment rights to corporations. This makes Citizens United the worst form of dicta, where a court largely misconstrues the effect of an opinion to conflate with its reasoning.
Buckley, nor Bellotti, nor any precedent until Citizen's United, fully reasoned why reconstruction-era due process rights for railroad property can be applied to give corporations personhood in the context of the 1st Amendment. Buckley, particularly, avoids such an analysis with almost expressive intent. The Buckley court was never fully concerned with corporate personhood, rather the court examined the effect of money on political speech. It's application to corporations was largely incidental.
The major failure, then, of Citizens United is that it never gave our country a reasoned discussion of why the corporate purpose could extend to political speech. Rather, it jumped to the logical fallacy that (1) money can influence speech, and (2) corporations deal with money, so, therefore, a corporation's purpose is to influence speech. This is a converse error that improperly imputes a speech purpose simply because a corporation deals with money.
Logic aside, the failure of Justice Kennedy's decision to really discuss Buckley and its relevant application could be perhaps forgiven under the voluminous consideration of issues in the lengthy Citizen's United decision. Unfortunately, that very pivotal piece of discussion lies at the heart of the decision. That is, never has Supreme Court jurisprudence recognized the complete personhood of corporations, with all the attendant rights, until Citizen's United. The failure to give reasons for doing so, while glossing over precedent that purports to do so, represents a wild and irresponsible breach of our rights as human beings. Are we to be so easily equated with organizations that by virtue of their legal existence and advantages, possess inordinate power to overwhelm those of us who are only one person.
For a detailed explanation, please see my paper on this issue, available here:
**See County of Santa Clara v. Southern Pac. R. Co., 118 U.S. 394 (1886)(regarding assessments on fences next to roadways); Covington & L. Turnpike Road Co. v. Sandford, 164 U.S. 578 (1896)(regarding legislatively imposed restrictions on toll collections); Minneapolis & St. L. Ry. Co. v. Beckwith, 129 U.S. 26 (1889)(regarding statute making railroad liable for double value of killed animals when protective fence not erected); Pembina Consol. Silver Mining & Milling Co. v. Com. of Pennsylvania, 125 U.S. 181 (1888)(regarding tax assessed by an individual state on a foreign corporation); Charlotte C. & A.R. Co. v. Gibbes, 142 U.S. 386 (1892)(regarding additional property tax levied on railroads to meet the salaries of railroad commissioners); Gulf C. & S.F. Ry. Co. v. Ellis, 165 U.S. 150 (1897)(regarding railroad liability for attorneys fees on claims below $50 and not paid within 30 days of filing complaint).