By David H. Gans, Director, Human Rights, Civil Rights, and Citizenship Program

Today, in a rare special session marking the Supreme Court debuts of Justice Sonia Sotomayor and Solicitor General Elena Kagan, the Court considered a First Amendment challenge to a federal statute banning corporations from spending money from their treasuries to finance electioneering communications that advocate the election or defeat of federal candidates. The case, Citizens United v. FEC, was first argued last spring. Rather than decide the case last Term however, the Court in June asked for new briefing and ordered re-argument on whether the Court should overrule two of its own precedents, decided in 1990 and 2003, that recognize that corporations do not have the same free speech rights that individuals have.

With these precedents on the chopping block, constitutional first principles loomed large during today’s oral argument. Over the past 25 years, we have grown accustomed to seeing conservative Justices make text and history arguments, while liberal Justices emphasize judicial doctrine.

But during today’s oral argument, it was the Court’s liberal Justices who forcefully argued from text and history. Asking the first question of Ted Olson, counsel for Citizens United, Justice Ginsburg reminded Olson that it is living persons, not corporations, who are “endowed by [their] Creator with unalienable rights.” Justice Sotomayor, too, picked up on this theme, emphasizing how the Supreme Court had rewritten the Constitution to create the fiction that corporations are persons entitled to the same basic rights as human beings. If we are looking to constitutional first principles to topple precedents, she asked, why shouldn’t we also look at the cases that invented corporate constitutional personhood and “imbued a creature of State law with human characteristics”? Near the end of the argument, Justice Breyer joined in, emphasizing that corporations are artificial, state-created entities – a view tracing all the way back to Chief Justice Marshall’s 1819 opinion in the Dartmouth College case – and that in exchange for their special advantages, corporations may legitimately be subject to disabilities to which citizens are not. And, not to be left out, Justice Stevens reminded his colleagues that former Chief Justice William Rehnquist (no starry-eyed liberal, he) had forcefully made these points in a dissenting opinion in First National Bank of Boston v. Bellotti (1976).

Complementing these text and history arguments, Seth Waxman, representing Senators John McCain and Russ Feingold and two former members of Congress, powerfully demonstrated why federal campaign finance law has treated corporations and human beings differently for more than a century: giving corporations an unfettered right to use their corporate treasuries to help elect candidates beholden to their special interests would put our democratic process in jeopardy, letting corporations overwhelm the election process with money derived from the special advantages conferred by the government.

Neither Ted Olson, Floyd Abrams, who represented Sen. Mitch McConnell as an amicus, nor any of the Court’s conservative Justices, had any response to the constitutional text and history cogently presented by Justices Ginsburg, Sotomayor, and others. Rather than confront constitutional text and history, Olson and the Court’s conservatives rested solely on the Court’s doctrine that corporations are persons with constitutional rights – the very distortion of text and history that Justice Sotomayor’s questioning discussed. Yet, it seems likely that these views will carry the day. Justices Scalia and Kennedy brimmed with hostility towards the federal ban on corporate electioneering, continually emphasizing that it applied to all corporations, including mom-and-pop barbershops and corporations without shareholders. (Of course, as Solicitor General Kagan countered, nothing in the law prevents the owners of such small corporations from spending money on election speech as individuals). Justice Thomas, characteristically silent, seems certain, based on prior rulings, to invalidate the federal statute, since he reached a similar conclusion in McConnell v. FEC. Chief Justice Roberts and Justice Alito – effectively the swing votes here – seemed likely to join them in protecting corporations, with the big questions being how far Chief Justice Roberts will go in overturning past Court precedents. Chief Justice Roberts’ questions to Solicitor General Kagan today, and her concessions that the government is defending the result, not the reasoning, of some past precedents, seemed designed to make overruling those precedents less objectionable.

We’ve already written why Citizens United is likely to be a momentous ruling; after today’s argument, the stakes are even bigger. The Court’s opinion is likely to be a major statement about the constitutional place of corporations in America. We hope the Justices take seriously the Constitution’s text and history and recognize that whatever rights corporations may have, corporations do not have the same constitutional freedoms as living persons, the “We the People” of the Constitution’s opening words.