The most memorable moment of the State of the Union address was the reaction of Justice Samuel Alito to inaccuracies in the President’s remarks about a recent Supreme Court decision. President Obama is hardly alone in mischaracterizing the January 21 ruling in Citizens United, which struck down as a violation of First Amendment freedom of expression, a federal ban on campaign ads and related communications paid for by corporations and labor unions. Never has a Supreme Court decision been misconstrued by so many people in so many ways. Before Congress “corrects” the Court’s ruling, as the President urged, it is crucial that a series of misconceptions about the decision be cleared up.
Among the misconceptions repeated by the President was the claim that the Court “open[ed] the floodgates for … foreign corporations.” That assertion requires a sizeable stretch, leading the Pulitzer Prize-winning PolitiFact.com to conclude that it is “barely true.” PolitiFact noted that “the majority justices didn’t actually strike down the existing barriers on foreign companies – in fact, they explicitly wrote that it fell beyond the boundaries of their decision.”
Critics’ apocalyptic descriptions of Citizens United – a return “to the robber-baron era of the 19th century” said the New York Times – have focused almost entirely on giant, for-profit corporations, with some mention of labor unions. Americans are left mostly unaware that the Court’s ruling applies equally to charities, advocacy groups, trade associations, and other non-profit corporations, not to mention small businesses. In fact, because non-profits are cause-oriented and typically more willing to openly jump into the political fray, they will be most impacted by the decision.
Corporations will have to take explicit ownership of each and every campaign ad they are behind. Contrary to the widespread impression that corporate dollars will be funneled into candidates’ campaign chests, the total ban on corporate contributions to candidates, political parties, and political action committees remains in place. Any coordination between corporations and campaigns remains unlawful as well. And even completely independent corporate expenditures must be publicly disclosed.
The continuing ban on corporate contributions is just one reason why the ubiquitous descriptions of Citizens United as a sea change are greatly exaggerated. You would never know that billionaires have always been permitted to spend unlimited amounts on independent campaign ads, or that corporate campaign ads masquerading as issue ads – for example, “call candidate Smith and tell him to end his support for killing baby seals” – were already protected by the First Amendment. In fact, a majority of states already permit unlimited corporate spending for explicit campaign ads in state races. Seven even allow unlimited corporate contributions to candidates. Yet there’s no evidence of greater corruption in those states.
Misconceptions about Citizens United also involve its legal foundation. An often heard but erroneous critique is that corporations don’t have First Amendment rights because they are not persons. While it’s true that corporations are afforded some but not all of the constitutional rights of individuals, various Supreme Court decisions recognize that the First Amendment protects “corporations and other associations,” in part because they “contribute to the [discussion and debate] that the First Amendment seeks to foster.” Those decisions also heed the Amendment’s plain language – “Congress shall make no law . . . abridging the freedom of speech, or of the press” – which makes no distinction between single individuals and associations of individuals, whether incorporated or not. Were it otherwise, the “robber-baron” editorial of the incorporated New York Times would enjoy no constitutional protection.
Citizens United is said to be at odds with precedent. While the decision did overturn a 1990 precedent, Austin v. Michigan, a majority of the Justices believed that the weight of other precedents demanded it. In addition to the Supreme Court’s repeated recognition of corporate free expression, Citizens United was dictated by the mother of all campaign finance precedents, Buckley v. Valeo. The government’s central argument in Citizens United, that independent expenditures can be regulated to prevent the possibility of corruption, was rejected 34 years ago in Buckley. As precedent, Austin was both an outlier and short-lived, contradicting the President’s claim that Citizens United “reversed a century of law.”
Finally, critics dismiss last month’s decision as an outrageous example of judicial activism because it overturned both the Austin precedent and Congress’ legislative judgment. Even putting the precedent supporting Citizens United aside, the skeptics rely on a conveniently erroneous definition of “judicial activism.” Courts owe deference to both prior rulings and the other branches of government, but that deference has never been thought to trump a judge’s obligation to enforce the First Amendment and the rest of the Constitution. The Supreme Court’s landmark anti-segregation decision, Brown v. Board, overturned both precedent and the judgment of elected officials. Nonetheless, it was solidly grounded in the text and intent of the Constitution’s Equal Protection Clause and thus withstood charges of judicial activism.
Reasonable people can disagree about how Citizens United should have been decided. However, the majority opinion is too firmly rooted in the words and intent of the First Amendment for judicial activism to be a credible charge. While the President and other critics of the ruling have every right to push for legislative action to address their concerns, they also have an obligation to ensure that such legislation is not based on unfounded charges and misconceptions.
Levey is Executive Director of the Committee For Justice, which promotes constitutionalist judicial nominees and the rule of law.