The Five Fallacies of Citizens United
by Matthew Rothschild, Executive Director
February 19, 2015
A lecture to a University of Wisconsin Law School Class, February 16, 2015
Fallacy #1: Corporate political speech should be as protected as individual political speech.
Justice Anthony Kennedy, writing for the majority in the notorious 2010 decision, declared that “political speech of corporations or other associations” cannot “be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”
Justice John Paul Stevens, in his minority opinion, debunked this:
“In the context of election to public office, the distinction between corporate and human speakers is significant,” he argued. “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 may conflict in fundamental respects with the interests of eligible voters. . . . 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.” Later, he added, witheringly: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
Stevens also invoked our Founders. “Unlike our colleagues, they had little trouble 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,” he wrote. “Thomas Jefferson famously fretted that corporations would subvert the Republic,” Stevens observed, and in a footnote, he provided the quotation from Jefferson from 1816: “I hope we shall
. . . crush in [its] birth the aristocracy of our monied corporations.”
Fallacy #2: Political speech by corporations cannot be restricted.
“Political speech must prevail against laws that would suppress it, whether by design or inadvertence,” Kennedy wrote. This seems to justify unlimited direct gifts to candidates, though the majority didn’t quite go there, essentially saying that political speech could not prevail if it was a “quid pro quo.” But the logic of the decision, and the sweeping statement that “political speech must prevail,” gives ammunition to Justice Clarence Thomas’s position that there should be no limits on campaign contributions.
NB: The next two fallacies encompass the two most naïve sentences ever written in a majority opinion by the U.S. Supreme Court.
Fallacy #3: “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
Fallacy #4: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
These two fallacies fall into the category of “What Planet Are They Living On?” When the Koch Brothers say they’re going to spend $889 million in the 2016 elections, it certainly raises the specter of corruption. And when the head of a roofing-supply company in Wisconsin, Diane Hendricks, gives $1 million to the Republican Party of Wisconsin, and when she is urging Republicans to pass “right to work” legislation, it does look like outright corruption if the Republicans push this legislation through. And to assert, as the justices did, that Americans won’t lose faith in their government is foolish. Already, in poll after poll, about 80 percent of Americans agree that corporations have too much power over our democracy.
Fallacy #5 : “No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”
Isn’t protecting democracy and the integrity of our elections sufficient governmental interests?
Here is Justice John Paul Stevens:
"A democracy cannot function effectively when its constituent members believe laws are being bought and sold."
“Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.” The Court’s decision, he added, undermines the integrity of our democratic institutions and “will undoubtedly cripple the ability of ordinary citizens, Congress, and the states to adopt even limited measures to protect against corporate domination of the electoral process.”
Stevens: “At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. 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.”