Democrats and liberals freaked out 13 years ago when the Supreme Court, in Citizens United v. Federal Election Commission, ruled that corporations and labor unions had a right to express their views on candidates and issues before an election. The decision, which struck down much of the McCain-Feingold campaign finance law, meant that businesses and nonprofit organizations were once again free to spend their own money to promote or oppose candidates and ballot measures, so long as they didn’t coordinate with any political campaign.
It was hardly an earth-shattering change. After all, newspapers, magazines, and TV networks routinely endorse candidates and take stands on proposed legislation. If media corporations have a robust First Amendment right to weigh in during political campaigns, why shouldn’t every kind of organization?
Yet the reaction on the left was apoplectic. MSNBC’s Keith Olbermann called the decision “our Dred Scott,” and Senator Bernie Sanders excoriated it as “one of the worst decisions ever made by a Supreme Court in the history of our country.” On its editorial page, The New York Times denounced the “disastrous” ruling as a “blow to democracy” that would “thrust politics back to the robber-baron era of the 19th century.” The Nation wailed that Big Business was now free to “dump money from the corporate treasury directly into the pockets of the candidates.” Then-president Barack Obama pronounced Citizens United “more devastating to the public interest” than anything he could think of.
Every Democratic Party platform adopted since the court ruled in Citizens United has condemned the decision by name, and Democratic lawmakers have proposed numerous measures to overturn it. Representative Jim McGovern of Massachusetts, for example, has several times introduced a “People’s Rights Amendment” that would deny constitutional liberties, including freedom of speech, to corporations. In each session of Congress since 2013, Senate Democrats have offered a “Democracy for All” amendment, which would give Congress and the states explicit constitutional authority to regulate campaign spending.
Now a Republican wants to get in on the act.
On Tuesday, Missouri Senator Josh Hawley introduced a bill intended, in his words, “to get corporate money out of American politics and . . . begin to undo the Supreme Court’s 2010 decision in Citizens United.” The legislation would prohibit publicly traded companies from spending money on political ads or other election-related communications. It would also bar them from giving money to so-called “Super PACs” — political action committees that can accept unlimited contributions from individuals, unions, and corporations and use the funds to make independent expenditures.
Hawley belongs to the populist, or self-described “national conservative,” wing of the Republican Party. He has embraced Donald Trump’s restrictionist views on trade and immigration. Like his Democratic Senate colleagues Sanders and Elizabeth Warren, he regards big corporations as malign forces in American life. “There is no reason we should want to empower these mega-corporations, who are already in bed and colluding with the government, and give them control over our elections and over our speech,” Hawley said in a RealClearPolitics interview.
Like his strange bedfellows on the progressive left, the Missouri senator deplores the idea that corporations can be entitled to rights, such as freedom of speech, that the Constitution guarantees to the American people. “I am an originalist,” he said, “and I don’t think you can make an originalist case for business corporations being treated like individuals when it comes to the right to political speech.”
In truth, corporate personhood is an old and well-known legal construct that enables individuals organized in groups to conduct their affairs more efficiently. Because corporations are legal “persons,” they can be sued in court, for example. They can be taxed. They can rent property. They can make contracts.
And they can express opinions — including opinions about politics.
In Citizens United, the Supreme Court didn’t rule that corporations have rights. It ruled that Americans have rights. Just as the government cannot, under the Constitution, prohibit one American from publicly supporting or opposing a candidate, neither can it prohibit many Americans from doing so simply because they have joined together in an association. A core value of American constitutional law is that political speech is indispensable to a democracy, the court held, “and political speech does not lose First Amendment protection simply because its source is a corporation.”
Hawley characterizes his bill as part of a “larger agenda to hold Corporate America accountable.” In a press release announcing his anti-Citizens United bill, he lists other examples of legislation he supports to crack down on businesses, from raising tariffs on Chinese imports to capping drug prices to breaking up Big Tech. Hawley appears to believe that maintaining a legislative and rhetorical assault on large companies will be a ticket to success. Perhaps it will. But a Republican senator whose strategy is to ally with Democrats in demonizing successful companies and stifling free speech can hardly be called a principled conservative.
In the 13 years since the ruling in Citizens United, American political life has grown more polarized and unedifying. But the 2010 decision isn’t to blame for the decline in civility and patience. Many corporations steer clear of political spending, regarding it as bad for business. According to former Federal Election Commission chairman Brad Smith, the vast majority of campaign money still comes from individuals donating directly to candidates. Corporations, by contrast, contribute “well under” 10 percent of federal political spending.
Democratic efforts to overturn Citizens United have never gotten to first base. Hawley’s bill is unlikely to do any better. Even if it passed both houses of Congress and were signed into law, it would still face the same formidable hurdle McCain-Feingold faced: the First Amendment.
Politicians and public officials have always wanted to control what people may and may not say about them. From the Alien and Sedition Acts in the 18th century to the harassment of parents at school board meetings in the 21st, government authorities have often sought to impede voters (and groups of voters) from criticizing them and their policies. The enemies of Citizens United are part of an old and disreputable tradition in American life. Hawley is on the wrong side of this issue, as he is on so many others.