By Scott Forsyth
The Daily Record Newswire
Two months after the Congressional election we are still assessing the impact on the election of the U.S. Supreme Court’s decision last January in Citizens United v. Federal Election Commission, 558 U.S., 130 S.Ct. 876 (2010). Groups are wading through the campaign finance disclosure reports to figure out who gave how much to whom and when.
Citizens United and a second lower court decision invalidated certain restrictions on indirect corporate expenditures advocating for or against the election of a candidate. Many restrictions on corporate campaign contributions survived, such as the bans on coordinating the indirect expenditures with the candidate and contributing directly to a campaign. Congress enacted the second ban in 1907.
You could not tell this from The New York Times editorial published the day after the decision. It proclaimed that the “disastrous” ruling has “thrust politics back to the robber-baron era of the 19th century.”
The New York Times also complained that the majority was “most wrongheaded” on “its insistence that corporations are just like people and entitled to the same First Amendment rights.” Many other commentators blame the court for breaking legal ground on the subject.
The editorial makes for great reading but, to quote it, it is “deeply wrong on the law.”
The First Amendment prohibits Congress from abridging the freedom of speech of the “people,” not the freedom of individuals or citizens. The Equal Protection Clause of the Fourteenth Amendment applied the First Amendment to the states. Again, the clause speaks of “any person,” not just citizens, enjoying the equal protection of the laws.
The sentence in the majority opinion that The New York Times and others object to reads, “(t)he court has recognized that First Amendment protection extends to corporations.”
The majority then cites 23 decisions in support of the sentence, dating back to 1952.
Ironically, one of the decisions cited is New York Times Co. v. Sullivan, 376 U.S. 254 (1964). It raised the bar for plaintiffs suing media for libel, requiring proof of actual malice.
That The New York Times was a corporation did not prevent the court from affording the paper this extra level of protection.
Actually, the majority could have gone back to the robber-baron days. The first case to stand for the proposition that a corporation is a person was Santa Clara County v. Southern Pac. R.R., 118 U.S. 394 (1886). The railroad’s president at that time was the notorious baron-philanthropist, Leland Stanford.
The railroad challenged the county’s property tax assessment on several grounds, including the Fourteenth Amendment. Individuals owning railroad property received certain exemptions not available to corporate owners.
In its decision the court did not discuss the constitutional claim. However, at the opening of oral argument, the chief justice announced that all of the justices agreed that the protections of the Fourteenth Amendment applied to corporations.
The official reporter picked up on the comment and added it to the syllabus. Future decisions would rely on the syllabus. Those decisions provide the constitutional framework for the proposition that corporations are persons.
Is the proposition sound? Yes. Persons may act individually or collectively to achieve a goal. One way to act collectively is to form a corporation. Why should persons acting collectively through a corporation have less constitutional protections than persons acting individually?
Underlying the First Amendment is the policy that society will benefit mightily from the interaction of multiple speakers with multiple viewpoints, the famous marketplace of ideas.
Just as the content of the viewpoints, with a few narrow exceptions, is irrelevant, so too should the identity of the speakers be irrelevant.
There is much to criticize about the opinion of the majority — its willingness to decide the case on constitutional grounds instead of the relevant statute, its conclusion that the election laws in fact excluded all corporate participation in elections, its disrespect of stare decisis in its reversal of a contrary decision only 20 years old, and its weak logic.
However, making corporations persons for First Amendment purposes is not a basis for criticism, the New York Times notwithstanding.
Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
