Constitutional Myth #5: Corporations Have the Same Free-Speech Rights as Individuals

The problem isn't "corporate personhood"; it's simple-minded interpretation that refuses to take note of the real function of the First Amendmentscourt2_corr2.jpg
On June 16, Judge James C. Cacheris of the Eastern District of Virginia ordered charges dismissed against two criminal defendants charged with violating federal election laws. The defendants allegedly allowed corporate employees to attend Hillary Clinton campaign fundraisers, then reimbursed them for the cost out of funds of their corporation, Galen Capital Group. If the allegations (as yet unproved) are true, this was a direct violation of 2 U.S.C. 441(b), which forbids corporations from contributing to federal election campaigns.

Judge Cacheris contemptuously brushed the statute aside as a restriction on the corporation's free speech rights. The Supreme Court has never held the statute unconstitutional, but the judge did it for them, relying on their latest campaign finance ruling, Citizens United v. Federal Election Commission.

The Court in Citizens United went out of its way to say it was not invalidating contribution limits, but Judge Cacheris explained they couldn't be serious:

Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified. . . . Thus, following Citizens United, individuals and corporations must have equal rights to engage in both independent expenditures and direct contributions. They must have the same rights to both the "apple" and the "orange."

Judge Cacheris's opinion is a prime example of right-wing judicial aggressiveness and simple-minded constitutional mythology. Like levees on the Mississippi, the extremely modest restrictions on corporate domination of American politics are being deliberately breached; the result, as in New Orleans in 2005, is a man-made disaster, a flood of corporate money that is distorting, and indeed threatens to destroy, American democracy.

The First Amendment exists, in the new logic, only to protect the right of those with money to drown out those without

Almost every literate American knows that in 2009, the United States Supreme Court held that corporations must be given the same free-speech rights under the Constitution as ordinary Americans to fund advertising advocating the election or defeat of political candidates. (The Court did explain that its opinion applied only to independent expenditures, not to direct contributions, but Judge Cacheris apparently saw them winking at him when they delivered that part of the opinion.) The Court gutted the McCain-Feingold Act, the first significant (even if timid) attempt at campaign finance reform since the laws passed in the wake of the Watergate scandals. What that means, of course, is that corporations, with their enormous financial resources, could flood the airwaves with ads from deceptively titled "issue groups" with names like "Americans for Prosperity" and "American Future Funds." This is precisely what happened in the 2010 campaign, when these anonymous funds swamped Democratic and progressive candidates with semi-anonymous attack ads in the days before the election. Perhaps coincidentally, those elections produced a radical shift to the right in the membership of both the House and the Senate.

To hear the right discuss it, though, anyone who questions Citizens United is spitting on James Madison's grave. "Any proponent of free speech should applaud this decision. Citizens United is and will be a First Amendment triumph of enduring significance," Sen. Mitch McConnell (R-KY), who is to campaign finance laws what Darth Vader was to Alderaan, crowed on the Senate floor after the decision. Rep. Mike Pence (R-IN) also explained that "the Court has taken important steps toward restoring to the American people their First Amendment rights. This decision is a victory on behalf of those who cherish the fundamental freedoms protected by the First Amendment." Sen. John Cornyn (R-TX) told the New York Times that "I can't think of a more fundamental First Amendment issue." He also noted that, by a bizarre coincidence, the decision would "open up resources that have not previously been available" to the Republicans.

There's another way to look at it. In his dissent in Citizens United, Justice John Paul Stevens--a moderate-conservative Republican--spoke for many citizens when he said, "While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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