Nexus: Chapman's Journal of Law and Public Policy

When the Citizens United decision was announced, there was a raucous uproar among those who disagreed with the decision. President Obama went so far as to rebuke the Supreme Court at the State of the Union Address in front of a national audience, while wrongly stating the ruling’s effect on precedent and foreign influence. In addition, he stated that “this decision gives corporations and other special interests the power to spend unlimited amounts of money -- literally millions of dollars -- to affect elections throughout our country. This, in turn, will multiply their influence over decision-making in our government." FN1. He has certainly not been alone in attacking the decision, as many legal scholars have joined in the fray. One of the primary issues with the decision, according to these scholars, is the theory of “corporate personhood.”

Justice Stevens took direct aim at the majority’s view that the corporation is a person by stating that, “[u]nder 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.” David Gans, a Director at the Constitutional Accountability Center, points out that corporations have always been treated differently than citizens when it comes to rights under the Constitution. FN2. He also quotes Chief Justice Marshall when he declared that corporations were "artificial being[s], invisible, intangible, and existing only in the contemplation of law" and "possess[ing] only those properties which the charter of creation confer…”

This doctrine of corporate personhood and its implications in Citizens United compels further analysis. It is uncontroverted that corporations are a legal fiction, that is, they only exist as a creature of law. Nobody would suggest otherwise. Yet, that merely begs the question – from where is the speech coming? If a corporation is a mere legal fiction, who is really speaking? Surely, an entity that only exists in law isn’t spontaneously creating advertisements pertaining to elections? Citizens United itself, the plaintiff in the case, was a corporation that wanted to distribute a “documentary” about Hilary Clinton. Did a fictional legal entity create this out of thin air? Of course not. Human beings create these advertisements. Human beings are the ones speaking. The real issue regarding the doctrine of corporate personhood becomes more clear when we recognize and specify what is really at stake. The actual question in Citizens United was: can citizens or people utilize the corporate form to create campaign speech? When properly framed, the implication that the First Amendment applies does not seem so radical. The Citizens United plaintiffs again provide the perfect example of this. Citizens United was a 501(c)(3) non-profit corporation that was created to further conservative causes. Its employees created numerous documentaries and advertisements on a wide range of topics and about numerous candidates for elected office. Those documentaries and advertisements, clearly political speech, were created by real individuals. Critics of the doctrine of corporate personhood constantly decry that corporations are not people. However, a corporation IS made up of people. Every action by the corporation is the product of the thoughts and actions of people. This includes political speech.

Perhaps it is not surprising that this point gets lost in debate today. We see in today’s society that corporations are continually personified. Railing against corporate greed is a constant rallying cry. We hear constantly about corporations outsourcing jobs overseas. President Obama recently claimed that businesses are making an “insidious power grab” this election cycle. FN3. There is so much talk referring to corporations as entities, while there is very little mention about the underlying actors. Rather than rail against the true decision-makers, we see writers and critics mention only the legal entity. Is it any wonder that some may see corporations as people? Ironically, it is the very people who constantly personify corporations that cry loudest against the doctrine of corporate personhood. This surely presents interesting psychological questions that hopefully will one day be answered.

To be sure, the personification of corporations in our civic debate should be irrelevant when dealing with rights under the Constitution. But, what is disturbing is how this psychological personification impacts legal argument. The point that corporations consist of people, and it is the actions of those people that is at issue when talking about corporate speech, is somehow lost among critics of Citizens United. Very few articles condemning the decision discuss the actual plaintiffs in the case and how their rights were infringed. If group of individuals get together to make a movie about a political candidate or to make a political statement on their own, few would take issue with whether this was speech by citizens. Fahrenheit 9/11 was not barred by campaign finance laws, nor was it railed as some corrupting influence on our election. Yet, if a few individuals choose to incorporate and make a political movie, their actions are blocked under campaign finance laws. Does the First Amendment really treat these two instances so differently? Is the speech in the first instance any more corrupting or improper than the second? Many political organizations incorporate as non-profits for the tax-exempt status. Should the speech put forth from the people in those organizations be any less protected than if they chose to forego incorporating as a non-profit? When phrased in this way, the Citizens United decision almost seems rather intuitively proper.

What is rather frustrating is that there are legitimate reasons for treating speech differently when the individuals do choose to incorporate. The rights granted under corporate law can negatively affect individuals in the corporation. The division of authority and decision-making power can permit certain individuals in a corporation, namely executives, to utilize resources of shareholders in furthering speech with which the shareholders may not agree. The same holds true for unions. Yet, any debate on such issues and how to effectively deal with them is drowned out. This is quite unfortunate, because such problems existed prior to the Citizens United decision and now may be exaggerated.

In the end, the Supreme Court in Citizens United achieved the right result. The question now is whether proponents and critics of the decision can shift their focus on the true problems in corporate and union speech.

FN1 http://voices.washingtonpost.com/44/2010/05/obama-calls-citizens-united-ru.html FN2 http://www.acslaw.org/node/15118 FN3 http://thecaucus.blogs.nytimes.com/2010/09/16/obama-again-attacks-funding-ruling/