Sustained Outrage

Corporate personhood and judicial activism

Several legal experts discussed the U.S. Supreme Court’s recent interpretation of corporate personhood in its 5-4 Citizens United decision during a hearing before the Senate Judiciary Committee earlier today.

You can listen to the entire hearing here, and read prepared statements of Judiciary Chairman Patrick Leahy (D-Vt.) here and members Russ Feingold (D-Wis.) here and Benjamin Cardin (D-Md.) here. Previous Sustained Outrage coverage is here, here and here.

Ranking Member Jeff Sessions (R-Ala.) said that criticisms of the decision were “overwrought,” and he praised the decision as “a very important affirmation of a fundamental American liberty.”

“This is a legitimate interpretation of the words and the spirit of the First Amendment which favors the liberty of advocacy in a very clear way,” he said. “I am concerned, though, that there has been too much alarmist rhetoric that has been flying around since this decision.”

Two of the three panelists who testified disagreed.

Doug Kendall, president of the Constitutional Accountability Center, said the majority opinion was “completely divorced” from the text and the history of the Constitution. (Kendall and CAC colleague David H. Gans published A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law today. You can read it here.)

The debate about how to treat corporations – which are never mentioned in our Constitution, yet play an ever‐expanding role in American society – has raged since the founding era. The Supreme Court’s answer to this question has long been a nuanced one: corporations can sue and be sued in federal courts and they can assert certain constitutional rights, but they have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. Only once, during the darkest days of the now‐infamous Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by “We the People.” And even in the Lochner era, equal rights for corporations were limited to subjects such as contracts, property rights and taxation, and never extended to the political process.

Far from considering corporations associations of persons deserving equal treatment with living persons, corporations have been treated as uniquely powerful artificial entities – created and given special privileges to fuel economic growth – that necessarily must be subject to substantial government regulation in service of the public good. Fears that corporations would use their special privileges, including limited liability and perpetual life, to overwhelm and undercut the rights of living Americans are as old as the Republic itself, and have been voiced throughout American history by some of our greatest statesmen, including James Madison, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Franklin Delano Roosevelt.

Law professor (and legal affairs editor for the New Republic) Jeffrey Rosen said that the ruling could put the Supreme Court on a collision course with Congress.

Citizens United is an activist decision by any definition of judicial activism. It is activist in its disregard of constitutional history, tradition, Supreme Court precedent, and the considered views of the President and Congress. It is precisely the kind of divisive and unnecessarily sweeping decision that Chief Justice John Roberts pledged to avoid in his confirmation hearings and after, when he said he would try to promote narrow, unanimous opinions, rather than deciding hotly contested questions by ideologically polarized, 5-4 votes. The most significant area where the Roberts Court has succeeded in achieving near unanimity is in cases affecting business interests, which tend to be decided in a pro-business direction. The broad rhetoric in Citizens United about the rights of corporations, combined with the apparent willingness of the 5-4 conservative majority on the Roberts Court to invalidate federal regulations that have broad bipartisan support, could lead to future confrontations between the Supreme Court and Congress on matters of economic fairness that citizens care intensely about.

On the other hand, argued Bradley Smith, law professor and chairman of the Center for Competitive Politics, the suggestion that the public is outraged by the decision, and that Congress must act quickly to rectify the situation, is “nonsense.” (Longtime Sustained Outrage readers will remember Smith as one of the “legal experts” ready to opine on the Supreme Court’s Caperton ruling.)

Before Citizens United, 26 states allowed unlimited corporate spending in elections (and two more allowed limited corporate spending), and these states—representing over sixty percent of the nation’s population—were not overwhelmed by corporate or union spending in state elections.

Moreover, they include the top five rated states in Governing Magazine’s ranking of the best governed states (Utah, Virginia, Washington, Delaware and Georgia). Furthermore, prior to McCain-Feingold, corporations could fund “issue ads,” hard-hitting ads that discussed candidates and issues but stopped short of asking citizens to vote in any particular way. In defending McCain-Feingold in the courts, “reformers” argued stridently that these “issue ads” were no different in effect from the “express advocacy” ads the Citizens United Court ruled corporations have a right to make, and the Court had expressly adopted that view in McConnell v. Federal Election Commission.

Smith maintains that polls that suggest that the vast majority of the public is unhappy with Citizens United “used inaccurate and misleading questions to elicit these bogus results. In fact, his organization just released the results of its own poll, which says that 51 percent of Americans oppose “government-imposed restrictions” on newspapers, television and other media.

Well, loyal readers (and if you’ve stuck with this post all the way to here, I think I’m justified in calling you loyal), what do you think? How do you feel about the Citizens United decision?