A Principled Approach to Citizens United

by David H. Gans, Director of the Human Rights, Civil Rights, & Citizenship Program, Constitutional Accountability Center

Writing in the National Law Journal about the debate swirling around Citizens United v. Federal Election Commission, Roy Englert and Alex Potapov take both liberals and conservatives to task for making arguments based on precedent as well as text and history, suggesting that both sides are guilty of making any argument it thinks is a winner rather than taking a principled approach to the Constitution. Englert and Potapov are certainly right to see the tension that sometimes exists between fidelity to constitutional text and history and respect for precedent — whether the Court should honor long standing precedents that depart from constitutional text and history can be a difficult and thorny question. But that question is not presented by Citizens United, and a principled resolution of that case does not demand that we choose between adherence to first principles and respect for precedent, casting one of the two aside.

The issue in Citizens United is whether or not to overrule two recent decisions – Austin v. Michigan Chamber of Commerce and McConnell v. FEC – that upheld federal and state laws limiting corporation spending on elections in line with the Constitution’s text and history. To Justices truly committed to constitutional text and history, reaffirming these precedents would be a constitutional no-brainer under any theory of precedent. It is no wonder that the case has been billed as a huge test of the Roberts Court – a Court that has staked its reputation on being sensitive to text and history and respectful of precedent.

From the very beginning of our Nation’s history, the constitutional protections afforded to living persons and corporations have been fundamentally different. The living persons who created the Constitution – the “We the People” of the Constitution’s preamble – were “endowed by their Creator” with “unalienable rights,” including “life, liberty and the pursuit of happiness.” Corporations – never mentioned in the Constitution – were not; they had only the rights specifically granted to them by the government. Over the course of our history, some of our greatest Presidents – such as Andrew Jackson, Abraham Lincoln, Teddy Roosevelt and FDR – recognized the fundamental differences between the American people and corporations and urged greater government regulation of corporations.

The rights of citizens and corporations are especially distinct when it comes to elections – the Constitution protects the rights of citizens to vote in constitutional amendments that no one could reasonably read to protect corporations. In addition, prevention of improper corporate influence over the electoral process has been a pillar of our democracy since as far back as 1833 when President Andrew Jackson castigated the Bank of the United States for its political spending on elections. In 1907, Congress enacted the Tillman Act and wrote into federal law a sharp distinction between the campaign finance laws applicable to living persons and those applicable to corporations, with the latter strictly regulated to prevent corruption of the electoral process, and that sharp distinction has been there ever since. This text and history show why Austin and McConnell’s holdings are right, and why those rulings should be reaffirmed.

Indeed, at oral argument in Citizens United, the Court’s liberal Justices – led by Justice Ginsburg and Justice Sotomayor – got this text and history exactly right, pushing the plaintiffs and their amici to explain how the broad ruling they were seeking – a holding that corporations have the same First Amendment rights as individuals to spend money on elections – squared with constitutional text and history. In fact, as Englert and Potapov note, Justice Sotomayor questioned whether the Supreme Court had erred in the 19th Century when it gave corporations the constitutional rights of human beings. Whether or not Justice Sotomayor intends to urge overruling past decisions granting corporations constitutional rights – a move that would raise stare decisis questions – her questioning properly highlighted how little support plaintiffs’ argument had in constitutional first principles.

Text and history, and respect for precedent, together make for a powerful argument in Citizens United. They explain why corporations and living persons do not have the same First Amendment rights, why Congress may limit corporate spending on elections, and why the Court should reaffirm its precedents upholding limits on corporate election spending.