by Adam Winkler
Yet it would be a mistake to view Citizens United as a novelty, as an ungrounded invention of the Roberts court with little basis in law or history. Citizens United was in fact the culmination of a two-hundred-year struggle for constitutional rights for corporations. The decision was built upon foundations first laid in the early 1800s. Ever since, corporations have fought to win a greater share of the individual rights guaranteed by the Constitution. First they won constitutional protection for the core rights of corporations identified by Blackstone in his Commentaries: rights of property, contract, and access to court. Then they won the rights of due process and equal protection under the Fourteenth Amendment and the protections of the criminal procedure provisions of the Constitution. In the early twentieth century, the court said that there were nonetheless limits to the constitutional rights of corporations: they had property rights but not liberty rights. Eventually, however, the court broke down that distinction and began to recognize corporations to have liberty rights such as freedom of the press and freedom of association. While corporate rights reached new heights with Citizens United, the scaffolding had been built up over two centuries of Supreme Court decisions.
Once Stevens finished reading from his dissent, the chief justice adjourned the court and the justices disappeared back behind the red velvet curtains. David Bossie excitedly went out to meet reporters waiting for a statement in the plaza in front of the Supreme Court Building. “I am grateful and humbled by today’s ruling,” Bossie said. Corporations could now “participate fully and freely in the election process.” Bossie then stopped to “take an opportunity to thank a few people.” He first named Ted Olson and his team from Gibson Dunn, who “poured their hearts and souls into this case. . . . Ted Olson has been a dear friend.” After naming more than half a dozen others, including the wife of the coexecutive producer of Hillary: The Movie, Bossie finally came around to Jim Bopp. Referring to him only as “Jim, our first lawyer,” Bossie said he was “one of the foremost First Amendment lawyers in the country.”63
Bopp had earned that reputation by winning important free speech challenges to campaign finance laws in the Supreme Court, yet it had not been enough to persuade Bossie to stick with him when Citizens United’s case reached the justices. And not long after the Supreme Court’s ruling in January of 2010, Bossie, as the broad scope of his victory became more clear, seemed to forget Bopp’s contributions altogether. Olson, Bossie told one interviewer, was “singularly responsible for our winning this case.”64
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THE PUBLIC BACKLASH TO Citizens United was swift, and to the justices almost certainly unexpected. Rarely does a Supreme Court decision on a subject as dry as campaign finance law stir the public’s outrage. Less than a week after the court’s ruling, President Obama denounced the decision in his State of the Union address. Standing before members of Congress, illustrious visitors, and even several of the justices, Obama said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities.” Democratic lawmakers rose to their feet in applause, contrasting sharply with the stillness of the justices, who by custom remained seated and unmoved by the cheering. Only Justice Alito acknowledged the president’s comment, shaking his head in disagreement and mouthing, “Not true.”65
PROTEST AGAINST CONSTITUTIONAL RIGHTS FOR CORPORATIONS AT THE SUPREME COURT ON THE SECOND ANNIVERSARY OF CITIZENS UNITED, JANUARY 20, 2012.
Although partisans on both sides were quick to condemn the exchange—with Republicans accusing Obama of exaggerating the court’s decision and Democrats criticizing Alito for denying the decision’s impact—Obama and Alito were both partially correct. Alito was right to object to the president’s statement that the court had “reversed a century of law.” To the extent Obama was referring to the Tillman Act of 1907, which banned corporate contributions to candidates, his statement was inaccurate. Technically, at least, that law was not at issue in Citizens United, which ruled only on the constitutionality of the Bipartisan Campaign Reform Act provisions that were enacted in 2002. And while the court had reversed two precedents, Austin and McConnell, those cases were nothing near a century old. Yet Obama was right that the logic and reasoning of Citizens United fundamentally undermined the legal basis for any special restrictions on corporate money in elections. The court had held that the corporate identity of the speaker was not grounds for limiting political speech, even though that had been the justification for over a century of campaign finance limits on corporate money.
Obama predicted that the Citizens United decision would open the floodgates for America’s wealthiest interests to exert even more influence over elections, and spending in the next presidential election cycle of 2012 rose dramatically. Corporations were now allowed to spend general treasury funds to finance independent expenditures in favor of, or against, candidates for office. They also gained the right to contribute to “Super PACs”—a special type of political action committee that, unlike ordinary PACs, was able to accept unlimited contributions from corporations and individuals so long as their independent expenditures were not coordinated with any federal candidate. In 2012, businesses publicly gave over $70 million to Super PACs, lead by the Chevron Corporation, which contributed $2.5 million to House Speaker John Boehner’s Congressional Leadership Fund. Some analysts speculated that corporations would have given more if Super PAC contributions did not have to be disclosed. As one corporate lobbyist noted, given the possibility of political donations offending customers and clients with different views, “nondisclosure is always preferred.”66
Corporations eager to assert themselves in politics but fearful of exposure directed their money instead to other types of political advocacy groups that were not required to disclose their contributors. Trade associations, nonprofit 501(c) organizations, and so-called “527 committees” were responsible for most of $300 million in “dark,” or undisclosed, money flowing into the 2012 races. It was revealed that Prudential, Merck & Company, and Dow Chemical each gave over $1 million to the US Chamber of Commerce to fund political expenditures. Computer chip maker Qualcomm, which was forced to admit its political spending as part of a settlement of a lawsuit, gave $2.8 million to dark money groups in 2012—far more than the company gave in otherwise disclosed contributions. In Montana, a political group named Western Tradition Partnership solicited money from companies by highlighting the lack of sunshine: “Corporate contributions are completely legal under this program. There’s no limit on how much you can give. It’s confidential. . . . No politician, no bureaucrat, no radical environmentalist will ever know.”67
Corporations have not been the only ones to increase their political spending in the wake of the Citizens United decision; wealthy individuals and unions have also embraced the new ability to spend unlimited sums on independent advertisements. The Center for Public Integrity, a campaign finance watchdog group, estimated that in 2012 there was nearly $1 billion in new political spending traceable to Citizens United. And that number only reflects spending on federal races, where there is already an overwhelming amount of money. Although the data are hard to come by, there is evidence of significant spending increases at the state and local level too. In races for judges, mayors, district attorneys, and county commissioners, campaign expenses are historically quite small. As a result, corporations and others can have a much greater impact on the outcome with far less money than would be possible in federal races.68
Corporations gained new means of influencing American elections from the Citizens United decision, despite the fact that the case was not brought by a business like so many other of the most important corporate rights cases of the past. Citizens United was the handiwork of a small nonprofit group—and thus follows the handful of
cases that involved corporations that were not themselves business firms, including Dartmouth College v. Woodward and NAACP v. Alabama ex rel. Patterson. The victories of these nonbusiness corporations nonetheless often redounded to the benefit of business firms, which were able to leverage them in the pursuit of their own profit.
The Citizens United decision also triggered a public backlash. Polls showed that eight in ten Americans were opposed to the Supreme Court’s decision. The opposition crossed party lines, with 85 percent of Democrats, 76 percent of Republicans, and 81 percent of independents saying Citizens United was wrongly decided. Even five years after the ruling, an overwhelming majority of Americans polled, 78 percent, said the ruling should be overturned. Hillary Clinton and Bernie Sanders, the two main Democratic candidates in the 2016 presidential race, both said that overturning Citizens United would be a litmus test for their Supreme Court nominees—a level of opposition known to only a handful of notorious cases in American history, such as Roe v. Wade, the abortion decision.69
Perhaps the most visible manifestation of the public reaction to the Citizens United decision came in 2011 with Occupy Wall Street, a series of populist political protests against income inequality and the role of money in politics that began in New York and, according to the Washington Post, quickly “spread like wildfire around the country.” The original Occupy protestors, who camped out in Zuccotti Park in lower Manhattan for two months, displayed signs testifying to the role they believed cases like Citizens United played in distorting democracy: “Corporations Are Not People,” “Democracy Not Corporatization,” “Revoke Corporate Personhood.” They claimed to speak for the “99 percent,” the broad mass of Americans who lacked the money and influence to fight against big business and the moneyed elite.70
One of the ironies of the Occupy Wall Street protests was that their success in raising public awareness about corporate power might not have been possible were it not for the political influence of a corporation. The protestors had expected to use either Bowling Green Park, the site of the famous “Charging Bull” sculpture that serves as the unofficial mascot of Wall Street, or the street in front of another downtown skyscraper nearby. When the New York City Police Department discovered the protestors’ intended destinations, however, they roped those public areas off and the protestors were forced to look elsewhere. They found their way to Zuccotti Park, a privately owned green space and plaza about a block away from their original site. The park had been created in 1968 by U.S. Steel as part of a deal with New York City to permit the company to build a neighboring skyscraper that exceeded the city’s height limits. One of the conditions of that agreement was that the park had to be kept open to the public at all times. As a result, when the Occupy protestors arrived, the current owner of the land, a commercial real estate company, believed it was powerless to close down the protest. The Occupy protestors were able to set up their tents and capture the attention of the American public thanks in part to the political deal making of a powerful corporation.71
The Occupy protestors adopted a resolution endorsing a constitutional amendment to overturn Citizens United:
Convinced that one critical threat to authentic democratic self-governance comes from the fact that corporations have been defined as legal persons, . . . Be it resolved that the New York General Assembly of Occupy Wall Street joins the millions of citizens, grassroots organizations and local governments across the country in calling for an Amendment to the Constitution to firmly establish that money is not speech, that human beings, not corporations, are persons entitled to constitutional rights, and that the rights of human beings will never again be granted to fictitious entities or property.
Support for such a constitutional amendment to eliminate constitutional rights for corporations was widespread, and stretched across the usual partisan lines. One of the leading proposals in Congress was sponsored by Representative Walter Jones Jr., a conservative Republican from North Carolina. “The status quo is dominated by deep-pocketed special interests,” Jones explained, “and that’s simply unacceptable to the American people.” A constitutional amendment was endorsed by liberal public interest organizations such as Common Cause, Move to Amend, Free Speech for People, and even Public Citizen, whose lawsuit on behalf of consumers in the 1970s unwittingly set in place one of the doctrinal foundations for Citizens United. By 2016, sixteen states, including California, Colorado, Montana, New Mexico, Oregon, Vermont, and West Virginia, and hundreds of municipalities, had passed resolutions of support for a Twenty-Eighth Amendment to clarify that constitutional rights belong to human beings, not corporations.72
“I just hope they spend every waking minute and even stay up late at night working on that amendment,” said Jim Bopp. The original lawyer behind the Citizens United case had experience with unsuccessful constitutional amendments. For years, he had promoted a different sort of “personhood” amendment, one that would declare the unborn to be “persons” protected by the Constitution. Yet after years of trying unsuccessfully to mobilize popular support, Bopp had come to realize that changing the Constitution on controversial issues through the amendment process was nearly impossible. Given the remote chances, a constitutional amendment to overturn Citizens United was exactly what a vigorous opponent of campaign finance law like Bopp wanted reformers to spend their time on. “I hope that is all they do for the next several centuries. Because it will be that long.”73
Better to fight in court, where Bopp had discovered it was far easier to change how the Constitution was interpreted. That was, at least, the approach taken by corporations since the earliest days of the nation. The Framers did not explicitly provide corporations with any rights in the text of the Constitution, and the document was never formally amended to extend rights to corporations, the way it was for women and racial minorities. Yet corporations had nonetheless secured nearly all the same rights as individuals through a two-centuries-long effort concentrated on the Supreme Court.
† The opinion of Justices Stevens, Ginsburg, Breyer, and Sotomayor was a partial dissent and partial concurrence. Those justices agreed with the majority with regard to another part of Citizens United’s case beyond our focus here, the organization’s challenge to the Bipartisan Campaign Reform Act’s disclosure provisions. By a vote of 8–1, the disclosure provisions were upheld. On the issue of corporate spending, however, Stevens et al. were dissenters and are referred to this way in the text for clarity.
CONCLUSION
Corporate Rights and Wrongs
IN THE SUMMER OF 2011, A YEAR AND A HALF AFTER THE SUPREME Court announced its decision in the Citizens United case, Mitt Romney, an aspiring candidate for the Republican presidential nomination, climbed up onto the famous Soapbox at the Iowa State Fair. Ringed by bales of straw, Romney, a private equity investor who had been governor of Massachusetts, was given twenty minutes to make his pitch to the fairgoers who gathered closely around. The crowd that greeted him was combative. They continually interrupted with shouted questions and jeers as the presidential hopeful tried to explain his policy on funding Social Security. Romney said he opposed policies that would “raise taxes on people.” A heckler who thought taxes should be raised on business instead shouted in response, “Corporations!” In what would become one of the notable gaffes of his campaign, Romney replied, “Corporations are people, my friend.”1
Romney’s comment, caught on video, touched off a storm of criticism. Corporate personhood had become a controversial catchphrase since Citizens United, and Romney was accused of repeating the same mistake as the Supreme Court by suggesting that corporations had equal standing to individuals under the law. Romney, however, was trying to make a different point. “Everything that corporations earn ultimately goes to people,” he said next. “Where do you think it goes?” Romney was not saying that corporations, as such, were people with the same rights as individuals. He was saying that corporations were simply associations of people. His view was that when it came to policymaking one
should ignore the corporate entity and focus instead on the people behind it. Dating back to Blackstone, however, corporate personhood in the law has traditionally meant that corporations are independent entities whose rights and obligations are separate and distinct from the rights and obligations of their members. Romney was mimicking the Supreme Court, but not in the way critics imagined. Rather, Romney and the justices used the language of personhood but employed the logic of piercing. They called corporations “people,” yet pierced the corporate veil, looking right through the corporate form to base the decision on the rights of the corporations’ members.
The centerpiece of Romney’s presidential campaign was a promise to repeal and replace President Obama’s signature legislation: the Patient Protection and Affordable Care Act. Popularly known as “Obamacare,” the healthcare law triggered a wave of legal challenges, including a historic, high-profile Supreme Court case on the law’s mandate that nearly all individuals have or buy health insurance. In a 2012 decision that surprised many court watchers, the court upheld the health insurance mandate in a narrow 5–4 decision in which Chief Justice John Roberts sided with the court’s four liberal justices. It was only the second time Roberts sided with the liberals in a 5–4 decision since joining the high court—and one possible explanation was Citizens United. As in that case, the four conservative justices argued for a broad ruling that went much further than necessary to resolve the dispute; they were prepared to strike down not only the individual mandate but the entire 2,700-page law, which included hundreds of provisions completely unrelated to the mandate. Perhaps Roberts was not willing to go along again with such an aggressive approach in another highly politically charged case that threatened to undermine his stated desire for a legacy as a minimalist who kept the court out of politics.2