What do the terms liberty and equality mean and how do they relate to each other?

Guiding Questions: Are corporations individuals with the same rights as live citizens?

IntroductionOne of the most controversial and consequential recent Supreme Court cases is Citizens United v. Federal Election Commission. Decided in 2010, Citizens United, as the decision is commonly known, was a case that focused on the free speech of corporations. Facts of the Case: The case originated during the presidential campaign of 2008. Before the election, the conservative political organization, Citizens United, produced a critical documentary film about Hillary Clinton titled, Hillary: The Movie. Citizens United wanted to air the film on DirecTV and advertise it throughout the mass media. The Federal Election Commission (FEC), the independent federal agency that regulates money in political campaigns, ruled that advertising and airing Hillary violated the 2002 Bipartisan Campaign Reform Act (BCRA or McCain-Feingold Act). That law stipulated that “electioneering communications” (i.e. political messages like a documentary film or TV advertisement) produced or financed by a corporation could not be transmitted across broadcast, cable or satellite networks within 60 days of a general election or 30 days of a primary election. Unhappy with the decision, Citizens United sued the FEC and appealed the case all the way to the Supreme Court. Decision: In a 5-4 decision, the Supreme Court agreed with Citizens United and struck down two previous Supreme Court cases—Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003)—and those parts of the BCRA that banned corporations and unions from producing or financing “electioneering communications.” The majority of the court reasoned that to do so is to violate or “chill” the free speech of corporations. A key assumption of the court—one well-defined in American law—is “corporate personhood,” the legal doctrine that allows corporations to be treated as individual people separate from the actual people that manage the corporation. Thus, part the majority’s reasoning in Citizen’s United goes something like this: If corporations are people then they too have the right to free speech under the First Amendment. Debate: Supporters of the decision cite it as an important victory for free speech in America. Critics of the decision argue, among other things, that corporations are not people, that the people who manage corporations are already free to donate money to political candidates, that money is not speech, and, if money is speech, then Citizens United allows corporations to drown out the speech of actual citizens with less money. Are corporations people with First Amendment privileges?

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Supreme Court of the United StatesSyllabus of Citizens United v. Federal Election CommissionJanuary 21, 2010

2.  Austin [v. Michigan Chamber of Commerce] is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures.…[the] restrictions on such expenditures are invalid and cannot be applied to Hillary[: The Movie]. Given this conclusion, the…restrictions on independent corporate expenditures is [sic] also overruled.… (a)  Although the First Amendment provides that “Congress shall make no law…

abridging the freedom of speech”… [the] prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a [Political Action Committee] created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that…restriction…(1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form.…This protection is inconsistent with Austin ’s rationale, which is meant to prevent corporations from obtaining “‘an unfair advantage in the political marketplace’” by using “‘resources amassed in the economic marketplace.…’” First Amendment protections do not depend on the speaker’s “financial ability to engage in public discussion….” Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First

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Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.…” All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt…they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views “hav[ing] little or no correlation to the public’s support” for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech. Austin interferes with the “open marketplace” of ideas protected by the First Amendment…Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations.

Source: Supreme Court of the United States, https://www.supremecourt.gov/opinions/09pdf/08-205.pdf

Questions1. What is a Political Action Committee (PAC)? What is the majority saying in paragraph two when it says PAC’s are the mouthpieces of corporations?

2. What does the majority mean when they say Austin makes a clear distinction between the “political marketplace” and the “economic marketplace.”

3. What is the significance of media corporations to the majority’s argument regarding the discriminatory nature of Austin v. Michigan Chamber of Commerce and the Bipartisan Campaign Reform Act of 2002?

4. How does the majority use the idea of an “‘open marketplace’ of ideas” to make their argument regarding discrimination against corporations?

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Source 2“How Citizens United changed politics, in 7 charts”The Washington Post January 22, 20141. Total Spending by Outside Groups, 1990 - Jan. 21, 2014 (ten months before mid-term elections)

2. Rate of Donor Disclosure, 1990-2012

3. Total Spending by Outside Groups with No Donor Disclosure, 2000-2012

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Source: The Washington Post, https://www.washingtonpost.com/news/the-fix/wp/2014/01/21/how-citizens-united-changed-politics-in-6-charts/

Questions1. What are three main trends illustrated by these three graphs?

2. Why would donor disclosures decline while total donations rise after Citizens United?

Source 3“Justices, 5-4, Reject Corporate Spending Limit”New York Times reportJanuary 21, 2010

By Adam Liptak

WASHINGTON — Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.

The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.

The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic

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also applies to the labor unions that are often at political odds with big business.… The majority cited a score of decisions recognizing the First Amendment rights of corporations, and Justice Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment.”

But Justice Stevens defended the restrictions struck down on Thursday as modest and sensible. Even before the decision, he said, corporations could act through their political action committees or outside the specified time windows.…

Justice Kennedy’s majority opinion said that there was no principled way to distinguish between media corporations and other corporations and that the dissent’s theory would allow Congress to suppress political speech in newspapers, on television news programs, in books and on blogs.

Justice Stevens responded that people who invest in media corporations know “that media outlets may seek to influence elections.” He added in a footnote that lawmakers might now want to consider requiring corporations to disclose how they intended to spend shareholders’ money or to put such spending to a shareholder vote.…

When the case was first argued last March, it seemed a curiosity likely to be decided on narrow grounds.…Thursday’s decision rejected those alternatives.… “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Justice Kennedy wrote. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

Source: New York Times http://www.nytimes.com/2010/01/22/us/politics/22scotus.html?pagewanted=all

Source 4“When Did Companies Become People? Excavating The Legal Evolution”Morning Edition, National Public RadioJuly 28, 2014Essay adapted from radio transcript

In the last four years, the U.S. Supreme Court has dramatically and repeatedly expanded the rights of corporations. The court has ruled that corporations have the right to spend money in elections for public office. It has ruled that some for-profit corporations may refuse to comply with the

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federal mandate to cover birth control in their health plans if they have religious objections. These are personal rights, but they are being accorded to corporations. What is the history larger significance of the fact that corporations are people?

The word corporation is defined in the dictionary as a number of persons united in one body for a purpose. In the United States, the advantages of incorporation were crucial to the nation's economic development. But corporations are nowhere mentioned in the Constitution, leaving to the courts the sorting out of corporate rights. After all, Coca-Cola is a corporation, but so are the NAACP, the National Rifle Association and small, local nonprofits.

From the moment the 14th Amendment was passed in 1868, lawyers for corporations—particularly railroad companies—wanted to use that 14th Amendment guarantee of equal protection to make sure that the states didn’t unequally treat corporations. For a hundred years, corporations were not given any right of political speech in federal law. In 1978, a sharply divided Supreme Court ruled for the first time that corporations have a First Amendment right to spend money on state ballot initiatives. Even after that, though, candidate elections remained free of direct corporate influence for decades. Only money from individuals and groups of individuals, known as political action committees, was permitted in federal elections. Then came Citizens United, the Supreme Court's 5-4 decision in 2010 extending to corporations, for the first time, full First Amendment free-speech rights to spend money as they wish in candidate elections—federal, state and local. The decision reversed a century-old legal understanding, unleashed a new flood of campaign cash and uncorked a crescendo of controversy.

There are serious people on both sides of this issue. Cato Institute’s Ilya Shapiro sees all corporations, when they spend on political campaigns, as merely associations of like-minded people. Nobody, Shapiro notes, is saying that corporations are living, breathing entities or that they have souls or anything like that. This is about protecting the rights of the individuals that associate in this way.

Critics of the ruling, like Columbia Law School’s Eben Moglen, also see themselves as strong First Amendment believers. They take issue not with corporate personhood, or the fact that corporations have rights, but with the idea that money is equal to speech. Citizens United, Moglen argues, uses constitutional rules to concentrate corporate power in a way that's dangerous to democracy.

That, of course, is not how the Supreme Court majority sees its decision. The Court has said that because speech is an essential mechanism of democracy, discrimination against any class of speaker is forbidden by the First Amendment. It matters not, the Court said just this year, that some

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speakers, because of the money they spend on elections, may have to undo influence on public policy. What is important is that the First Amendment protects both speech and speaker, and the ideas that flow from each.

Source: National Public Radio, http://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution

Questions1. Are corporations mentioned in the Constitution?

2. Which Civil War amendment played a key role in corporate law in the late nineteenth century?

3. This report ends with the comment that the Constitution, through Citizens United, protects both speech and the speaker. Can we separate the two? If so, how? If not, why?Source 5“Debating ‘Citizens United’” The Nation Magazine January 13, 2011

“Remember the First Amendment?”By Floyd Abrams

When the Citizens United decision was released, many commentators treated it as a desecration. People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president.

That the opinion was based on the First Amendment seemed only to add to their sense of insult. Some dealt with that uncomfortable reality by simply ignoring what the opinion said.…Citizens United concluded that the First Amendment bars Congress from criminalizing independent expenditures by corporations and unions supporting or condemning candidates for federal office.…

The opinion of Justice Anthony Kennedy in Citizens United was written in that spirit. It was rooted in two well-established legal propositions. The first was that political speech, especially political speech about whom to vote for or against, is at the core of the First Amendment.…

The second prong of Justice Kennedy’s opinion addressed the issue (much discussed in this magazine and elsewhere) of whether the fact that Citizens United was a corporation could deprive it of the right that individuals have

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long held to support or oppose candidates by making independent expenditures. In concluding that the corporate status of an entity could not negate this right, Justice Kennedy cited twenty-five cases of the Court in which corporations had received full First Amendment protection. Many of them involved powerful newspapers owned by large corporations…

Source: The Nation, https://www.thenation.com/article/debating-citizens-united/Questions1. What is Abrams’s main argument in favor of the Citizen United decision?

2. What does Abrams identify as the two “well-established legal propositions” behind Justice Kennedy’s opinion in Citizen’s United?

Source 6“Debating ‘Citizens United’”The Nation January 13, 2011

“Corporations Aren’t People”By Burt Neuborne

We don’t know exactly where the corporate money came from in the midterm elections, or where it went. We know that more than $4 billion was spent by both sides, much of it on negative and misleading advertising. We also know that about $300 million, maybe much more, came from corporate treasuries.…

We do know this—thanks to the Supreme Court’s 5-4 decision in Citizens United granting corporations a First Amendment right to spend unlimited sums to win an election, we are facing a second Gilded Age where American democracy is for sale to the highest corporate bidder. Justice Kennedy’s opinion, touted by some as a great victory for free speech, begins with a glaring First Amendment mistake. Kennedy claims that the case is about the constitutionality of discriminating between two categories of First Amendment speakers—corporations and human beings. But that just begs the question. The real issue in Citizens United was whether corporations should be viewed as First Amendment speakers in the first place. The business corporation is an artificial state-created entity with unlimited life; highly favorable techniques for acquiring, accumulating and retaining vast wealth through economic transactions having nothing to do with politics; and only one purpose—making money. Human beings, on the other hand, die, do not enjoy economic advantages like limited liability and, most important, have a conscience that sometimes transcends crude economic self-interest. Those dramatic differences raise a threshold question, ignored

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by Justice Kennedy, about whether corporations are even in the First Amendment ballpark.One hundred years ago, confronted by the same question, the Supreme Court ruled that corporations, as artificial entities, are not protected by the Fifth Amendment’s privilege against self-incrimination. That’s still the law. In 1988 Justice Kennedy wrote that huge corporations do not deserve the self-incrimination privilege because the privilege “is an explicit right of a natural person, protecting the realm of human thought and expression.” Kennedy never explains in Citizens United why freedom of speech is not exclusively a “right of a natural person, protecting the realm of human thought and expression.” The closest he comes is the argument that voters will somehow benefit from a massive, uncontrolled flow of corporate propaganda. But he never explains how a voter is helped by being subjected to an avalanche of one-sided speech just before an election from a corporation with an unlimited budget and an economic stake in the outcome, especially when the voter often doesn’t even know the speech is coming from a corporation.…

Nor is it persuasive to argue that since newspaper corporations enjoy First Amendment protection, the electoral speech of oil companies and banks must be similarly protected. The short answer is that the First Amendment has a separate “press” clause that applies to newspapers but not to oil companies or banks.…

Source: The Nation, https://www.thenation.com/article/debating-citizens-united/Questions1. What is Neuborne’s main argument against the Citizen United decision?

2. Why does Neuborne argue that media corporations are not like oil companies and banks and thus not a category of corporations benefiting from discrimination?

Source 7California Proposition 59 (2016)Official Voter Information Guide Summary

Asks whether California's elected officials should use their authority to propose and ratify an amendment to the federal Constitution overturning the United States Supreme Court decision in Citizens United v. Federal Election Commission. Citizens United ruled that laws placing certain limits on political spending by corporations and unions are unconstitutional. Fiscal Impact: No direct fiscal effect on state or local governments.

Shall California's elected officials use all of their constitutional authority, including, but not limited to, proposing and ratifying one or more

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amendments to the United States Constitution, to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that corporations should not have the same constitutional rights as human beings?

Source: California Secretary of State, http://voterguide.sos.ca.gov/en/propositions/59/ Source 8“Prop 59: Don’t amend the Constitution over Citizens United” Los Angeles Times editorial September 6, 2016

By The Times Editorial Board

Citizens United, the 2010 Supreme Court decision holding that corporations had a 1st Amendment right to spend unlimited amounts of money to influence elections, has no shortage of critics. Editorial writers (including the ones behind this page) have assailed the decision. President Obama denounced it in a State of the Union address with several justices sitting in attendance. In a 2015 Bloomberg poll, 78% of respondents said that it should be overturned.

…If we had had our way, this question even wouldn’t be on the ballot. We urged Gov. Brown to veto the legislation…

But now that the question is on the ballot, the voters must choose, and so must we. We recommend a No vote, for two reasons.

First, amending the Constitution is a difficult process by design, and not every unwise Supreme Court decision justifies the attempt.  Citizens United, which was decided only six years ago by a mere 5-4 majority, could plausibly be reconsidered or narrowed with a change in the court’s membership.  Hillary Clinton, for one, has made it clear that she would appoint justices likely to reconsider the ruling.…

That brings us to our second concern about Proposition 59: Like a similar measure approved by Los Angeles city voters in 2013, Proposition 59 doesn’t specify what a proposed constitutional amendment would actually say.

True, Proposition 59 suggests that an amendment or amendments would reverse Citizens United and “other applicable judicial precedents” — a reference mainly to Buckley vs. Valeo, a 1976 decision holding that

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individuals could spend unlimited amounts of their money on independent political expenditures. But the measure also suggests that a constitutional amendment would “make clear that corporations should not have the same constitutional rights as human beings.”

That’s a powerful, even poetic, pronouncement, but what does it mean? Would corporations lose only free-speech rights or other rights as well, such as the right to be free from unreasonable searches and seizures at their places of business or to due process of law if they were sued? Would nonprofit as well as for-profit corporations be affected? What about the 1st Amendment rights of corporations that publish newspapers or broadcast the nightly news?

…We share the frustration over Citizens United (the decision) and “Citizens United” (the metaphor for the outsize role of money in politics). We also recognize that the very reason we opposed placing this question on the ballot — that it’s purely advisory — could be offered as a justification for voting Yes; why not take advantage of this opportunity to “make a statement”?

Fair enough, but if that statement is: “Amend the Constitution; details to follow,” we don’t think it’s a message worth sending.

Source: Los Angeles Times, http://www.latimes.com/opinion/editorials/la-ed-proposition-59-20160906-snap-story.html

Questions1. Does the Times Editorial Board support the Citizens United decision?

2. What are the Times’ two main objections to Proposition 59?

Source 9“Chronicle recommends: Yes on state Prop. 59” San Francisco Chronicle editorial September 6, 2016

San Francisco ChronicleNonbinding resolutions on the statewide ballot are generally a waste of time, and they are especially annoying when the subject is campaign finance reform and the measure was put on the ballot by a California Legislature that has done so little to curtail its own sleazy practices.

We understand why some voters will be tempted to reject Proposition 59 on principle: send a message to lawmakers to stop piling advisory measures on an already too-crowded ballot, and stop thwarting reforms such as those

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designed to end fundraising during peak legislative sessions and to provide greater transparency on hearings and bills. Fortunately, the latter issue is being addressed by Prop. 54, a citizens’ initiative that requires hearings to be live-streamed on the Internet and legislation to be in print 72 hours before a vote.

However, the statement in Prop. 59 is too important to bypass. It calls on California’s elected officials to use “all of their constitutional authority” to help overturn the U.S. Supreme Court’s 2010 Citizens United vs. Federal Election Commission decision. That 5-4 ruling blew a gaping hole in post-Watergate reforms by declaring that corporations and labor unions were free to spend as much money as they desire to persuade people to vote for or against a candidate.

The ruling left intact restrictions on direct contributions to campaigns, but that’s not where the big money flows these days. Citizens United gave rise to the creation of super PACs that effectively run parallel campaigns for and against candidates on the ballot. Some of the biggest donors, such as Tom Steyer on the left or Sheldon Adelson on the right, have poured tens of millions into these outside spending groups.

The Supreme Court’s reasoning — whether naive or oblivious to reality — was that these supposedly independent efforts “do not give rise to corruption or the appearance of corruption” because the money is not being spent in coordination with a campaign.Yet the lines between an official campaign and a supportive super PAC is becoming more and more blurred, and the FEC has become too debilitated by partisan gridlock to deliver meaningful enforcement of the rules that exist.

The one clear path to restoring control of money in politics would be a constitutional amendment that would assert Americans’ right to regulate donations and spending. It’s a tall order and would require a formidable citizen uprising to demand it.

Prop. 59 would affirm this state’s commitment to genuine campaign finance reform.

Vote yes.

Source: San Francisco Chronicle, http://www.sfchronicle.com/opinion/editorials/article/Chronicle-recommends-Yes-on-state-Prop-59-9206221.php

Questions1. Does the Chronicle Editorial Board support the Citizens United decision?

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2. What is the Chronicle’s main reason for supporting Proposition 59?

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