Saturday, July 7, 2012

Will Progressives Follow the Chief's Lead and Embrace Citizens United?

A recent op-ed by Michael Kinsley of Bloomberg News argues that progressives should follow the example of Chief Justice John Roberts and embrace a constitutional result with which they disagree as a policy matter.  Kinsley surmises that the Chief Justice opposes Obamacare on policy grounds but notes that he nonetheless found the measure to be constitutional as an exercise of Congress's taxing power, albeit beyond the power of Congress under the Commerce and Necessary and Proper clauses.  (Go here for a brief explanation of the ruling.)

As Kinsley notes, speech costs money, and spending money on speech is distinguishable from campaign contributions, which candidates may or may not spend on speech.  Moreover, the law before the Court in Citizens United banned speech and not spending as such.  Hence, those who criticize Citizens United because the ruling equates "money" with "speech" are simply wrong.  (For a similar and more didactic argument, see this essay by Geoff Stone on the Huffington Post.)   Moreover, as Kinsley perceptively points out:

"As applied to an individual, such a law [a ban on political speech] would be obviously unconstitutional. Endorsement of a political candidate -- even if that candidate is yourself -- is about as central to the First Amendment as any category of speech can be."

Kinsley concedes that corporations are not natural persons, and that one could distinguish a ban on personal speech from a ban on corporate speech on this ground.  But, as he points out, this rationale for censorship would also empower Congress and the states to ban speech by newspapers and other media companies altogether, so long as such entities are organized as corporations, as they invariably are.  While the particular law at issue in Citizens United exempted media companies, such an exemption would be unnecessary if the now-fashionable progressive view that corporations are not entitled to protection under the First Amendment prevailed.  As a result, Kinsley calls on progressives to acknowledge that Citizens United is correct, even if they believe the decision has deleterious effects for democracy, in the same way that Chief Justice Roberts acknowledged the constitutionality of Obamacare.

Of course Chief Justice Roberts did not announce his policy views on Obamacare; hence, Kinsley's assertion about the Chief Justice's personal opinion on the matter is speculation.  Moreover, the joint dissent of Justices Scalia, Kennedy, Thomas and Alito made a powerful argument that the Obamacare penalty is not a bona fide exercise of the taxing power, with the result that their vote to invalidate the individual mandate is no less principled that Chief Justice Roberts' conclusion to the contrary. 

At the same time, Kinsley, who obviously disagrees with the result in Citizens United, has himself taken a principled stand.  Moreover, he is certainly correct that many "progressives" (including the President of the United States) strongly believe that Congress and the states should censor high value political speech by corporations, even corporations of very modest means that spend far less on speech than many individuals.  He's also correct that many of these same individuals (including again the President, who mischaracterized the decision in a State of the Union Address) continually decry the Citizens United decision, despite the fact that the Supreme Court has treated corporations as persons for more than 110 years and the Constitution forbids bans on high value speech.  At the same time, the case for corporate free speech rights is even stronger the Kinsley acknowledges.  For, as previously explained on this blog corporations are simply associations of individuals who voluntarily contribute their skills and capital to a joint enterprise.  (See here and here),   Thus, when the corporation speaks, it does so on behalf of the various participants in the corporate enterprise, thereby ensuring a more effective exercise of constituent members' free speech rights.  To be sure, some members of that enterprise may disagree with positions that a Board of Directors take on behalf of a corporation.  But that is true of any organization, whether the ACLU, Cato Institute, or Firefighters Union.  The possibility of disagreement within an organization does not empower the government to censor it.

Indeed, Kinsley might also have noted that, if the Constitution did not treat corporations as persons, states and the national government could simply confiscate corporate property without providing compensation or impose regulatory penalties without providing due process, a regulatory approach the Supreme Court rejected over a century ago in decisions premised upon the finding that corporations are persons within the meaning of the 14th Amendment.  See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897) (14th Amendment forbids taking of corporate property without just compensation); Chicago, Milwaukee & St. Paul Railway Company v. Minnesota, 134 U.S. 418 (1890) (14th Amendment requires states to afford due process protections to corporations).  The result would be a kleptocracy, a state of affairs that progressives would themselves decry.