Stop the Silly Rhetoric Around Citizens United

Since the day it came down, the Supreme Court’s 2010 decision in Citizens United has been tied to a political whipping post. Critics jumped on the Court for finding that corporations have First Amendment rights and that political contributions constitute a form of speech—even though both of those principles were established long before 2010.

But many of the criticisms of Citizens United aren’t just misinformed or ill-conceived. They’re downright silly. So are many of the defenses of the decision. 

Consider the exchange that took place not too long after the case was decided. Elizabeth Warren declared that corporations obviously are not people because, for instance, they do not have hearts or get sick. In an editorial in the Wall Street Journal, Jack and Suzy Welch responded, with equal zeal: “Of course corporations are people.  What else would they be?”
What  they would be, and in fact are, is clear.  Corporations are entities created by law; they exist to fulfill certain permitted purposes; and they are separate and distinct from their officers and employees.  Indeed, assuming that the interests of officers and employees are coextensive with those of the entity—the exact assumption embedded in the Welch editorial—has led to no end of mischief, and more than a few criminal indictments.

The real question is therefore not whether corporations lack passions, sorrows, and the capacity to dance (as Elizabeth Warren said) or whether they bond with their customers, mentor inner-city kids, and shout, laugh, and drink coffee (as Jack and Suzy Welch said).  The real question is whether legal entities like corporations should have certain rights that we normally assign to human beings.

As to some matters, this question would not make any sense.  No one argues that corporations should have the right to marry who they like or to use contraception or to receive communion.  But, as to other matters, the question is not only sensible, but critical.  One such issue is whether speech engaged in by legal entities—including corporations—should receive the protections of the First Amendment.

Many, probably most, First Amendment scholars agree that the answer to this question is “yes.”  The Supreme Court answered this question that way long before Citizens United and its attendant rhetorical flurry.  Still, important issues remain.

Smart and informed people can reasonably disagree about those issues.  They can argue over the effects of concluding that corporations have First Amendment rights.  They can debate whether those effects are so corrosive to the democratic process that our First Amendment jurisprudence leaves room for government regulation.

But I respectfully suggest that everyone should stop arguing over whether corporations smile or dance the tango or take their kids to Little League or get misty-eyed during Hallmark commercials.  They don’t, and it would be creepy if they did, and none of that really has anything to do with the actual and serious issue at hand.

This is an updated version of a post that first appeared on Len Niehoff’s previous “Random Verdicts” blog