What Glenn Greenwald Got Wrong about the Constitution

by Doug Kendall, President & Founder, and Hannah McCrea, Online Communications Director, of Constitutional Accountability Center (CAC)

Over at Salon, Glenn Greenwald has been urging calm among progressives who are appalled and angry at the Supreme Court’s ruling last week in Citizens United v. FEC, and accusing progressive critics of the ruling of over-simplifying the law and under-respecting the First Amendment. But his own analysis is surprisingly shallow and his burden is pretty high when he is essentially saying that Justice Stevens’ brilliant and comprehensive 90 page dissent, joined in full by Justices Ginsburg, Breyer, and Sotomayor, gets the Constitution wrong, and the five conservatives on the Roberts Court got this one right.  He doesn’t come close to making that argument stick.

Greenwald, of course, is widely and appropriately respected among progressives for his aggressive defense of constitutional principles and their abuse in the execution of this country’s “War on Terror.”   Indeed, it is precisely because Greenwald has assumed a role as a leading authority on the Constitution within the progressive community that his recent defense of the Court’s decision in Citizens United is alarming, and warrants response.

Greenwald’s main beef with progressive critics of the ruling is that we are fighting issues such as “money is speech” and “corporate personhood,” which are not really front and center in the case.  To Greenwald – as to the majority – Citizens United is simply about the First Amendment and nothing else.  Greenwald writes:
I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people — which is what corporations are — from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood.  Does anyone doubt that the facts that gave rise to this case — namely, the government’s banning the release of a critical film about Hillary Clinton by Citizens United — is exactly what the First Amendment was designed to avoid?  And does anyone doubt that the First Amendment bars the government from restricting the speech of organizations composed of like-minded citizens who band together in corporate form to work for a particular cause?
Whether one calls this an “absolutist” view or just an “overly simplistic” one is, perhaps, a matter of semantics, but Greenwald is missing the point.  Yes, individuals should have the right to form and express political views, whether as a voting bloc, an alliance of protestors, or a legally-recognized entity that collects individual donations to advance a political message.  If the Court had written a narrow opinion vindicating the speech of such groups, it is likely that we would have seen a unanimous opinion.  After all, at oral argument, Justice Stevens himself argued for precisely this result.

And while the majority elides the issue of corporate personhood and the question of whether money is speech, these issues form a big part of Justice Stevens’ analysis of why Congress can restrict the ability of corporations to spend unlimited amounts of money to get their way in American electoral politics.  Justice Stevens explains patiently both how corporations differ from human beings and how corporate resources are not “an indication of popular support for the corporation’s political ideas.”  A ban on corporate expenditures is constitutional, Stevens argues, because it does not “prevent anyone from speaking in his or her own voice.”  (Dissent at 77.)  He concludes that “corporate spending is ‘furthest from the core of political expression,’” (dissent at 77,) because corporations have no autonomy or dignitary interests in freedom of expression; in fact, corporations, by law, must concern themselves only with maximizing profit.  Therefore, prohibitions on such spending “impose only a limited burden on First Amendment freedoms.” (Dissent at 79.)  In other words, because corporations are not people, and because money is not really speech, the justification needed for a ban on corporate spending on elections is not the same as the justification the government needs for banning political speech by individuals.

Greenwald himself recognizes that “corporations are creatures of the state and should not enjoy the same rights as individuals.”  But his bottom-line position — that corporate expenditures are political speech and that there is no compelling governmental interest sufficient to justify restriction on political speech — makes this concession meaningless.  Greenwald supports this position with the same simplistic textual argument relied upon by the majority: the First Amendment is a limit on Congress — “Congress shall make no law” — and it doesn’t distinguish among who is speaking.  But, it has never been the law that all forms of speech (even political speech), and all types of speakers, are treated equal.   Stevens response is devastating:  “If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”

Greenwald also criticizes as “intellectually confused” the argument that the conservatives on the Roberts Court were too cavalier in tossing out prior precedents, most notable its ruling in Michigan Chamber of Commerce v. Austin.  Greenwald’s right, of course, that no one should be an absolutist about adhering to prior rulings – as he puts it, “if a settled proposition of law is sufficiently repugnant to the Constitution, then the Court is not only permitted, but required, to uproot it.” But everyone, including the dissenting justices, recognizes that.   Justice Stevens’ main argument – powerfully laid out on pages 42-55 of his dissent – is that the majority is disingenuous in denying how sharply its ruling departs from constitutionally sound case law, and how much the Court’s ruling in Citizens United changes the law in a case in which there were numerous narrower grounds for a decision available to the Court.  Here’s Justice Stevens summation:
Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 [of the McCain-Feingold campaign finance act] is facially unconstitutional only after mischaracterizing both the reach and rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin the Court’s lawmaking power.
Given the power of the merits arguments marshaled by Justice Stevens in support of upholding the ban on corporate election spending, Greenwald’s implication that the law here is constitutionally “repugnant” – and comparable to the Court’s errors in Plessy and Bowers — is offensive.  But the real problem again is that Greenwald takes on the strawman of whether cases should ever be overruled and  fails entirely to take on Justice Stevens’ actual arguments of why adhering to prior case law was justified here.

Finally, relying on an op-ed by Eliot Spitzer, Greenwald calls special restrictions on corporate electioneering “irrational, discriminatory and ineffective” because they exempt media corporations included the Fox News, the corporation progressives love to hate.  This is the flip side of the argument that dominates the majority opinion of Justice Kennedy and the concurring opinions by Chief Justice Roberts and Justice Scalia, who argue that restrictions on corporate electioneering cannot be permitted because this would inevitably mean Congress could prohibit media companies like the New York Times from endorsing candidates.  Both Greenwald’s argument and its flip side have superficial appeal, but again, Stevens takes the argument head on and hits it out of the park.  Stevens explains precisely why “the text, history, and structure of the First Amendment,” which prohibits abridging freedom of “the press” as well as freedom of speech, justifies different treatment of media corporations.   This should be apparent from reading the Constitution — the press is the only private business that is given explicit constitutional protection.  As Stevens notes on page 84 of his dissent, “our colleagues have raised some interesting and difficult questions about Congress’ authority to regulate electioneering by the press, and about how to define what constitutes the press.  But that is not the case before us.”   Precisely the same rejoinder could be made to Greenwald’s argument.

Greenwald is, of course, entitled to side with the five justice conservative majority in Citizens United and against the Court’s four moderate to liberal justices.  He’s free to join the likes of Jonathan Turley and Eliot Spitzer in sanctimoniously telling progressives that they will “stand with the First Amendment.”  But if Greenwald, Turley, Spitzer and their colleagues want to convince progressives that they are wrong to be outraged by the Court’s ruling, they need to do more than take pot shots at the commentators on their blogs and fight the strawmen they find vulnerable.  Rather, they need to confront head on the thoroughly brilliant and comprehensive argument put forward in the dissent, which richly explains why the Constitution’s text and history – including that of the First Amendment – do not support the majority’s reasoning.  Every American should “stand with the First Amendment.”  In Citizens United, that is best done by standing with Justice Stevens.

To its great credit, the American Civil Liberties Union (ACLU), which has long endorsed an “absolutist” line on the First Amendment similar to Greenwald’s, continues to debate whether its position is the right one, particularly in light of Citizens United. Hopefully, Greenwald will be similarly open to reconsideration of his position after fully absorbing the power of Justice Stevens dissent.  As President Obama’s powerful attack on Citizens United in his weekly address to the nation makes clear, Citizens United represents a unique opportunity to energize progressives and populists to fight against the activism of the Roberts Court and to support a long-term strategy to put the Supreme Court back on track.  Progressive commentators should not lightly undermine this effort.

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