Op-ed: Berkeley overrules Citizens United!

The biggest vote-getter on the Nov. 4 ballot in Berkeley was not the tax on sugary soda, which got 75% of the vote and national attention. Nor was it a candidate for any office. It was Proposition P, which called for a constitutional amendment to overturn the Supreme Court’s 2010 Citizens United decision. Prop P got 85% of the vote.

The proposition was, as California propositions go, remarkably simple. It asked if the United States Constitution should be “amended to abolish the concept that corporations are persons that are entitled to constitutional rights, and the doctrine that the expenditure of money may be treated as speech.” (Berkeleyans have rarely been bothered that their principled positions on national and international affairs have little effect; the proposition was placed on the ballot by the City Council.)

The official ballot argument in favor of Prop P (no opposing argument was submitted) overstated the Citizens United decision by claiming it “gave corporations the same rights and protections under the U.S. Constitution as human persons.” It mistakenly added that the decision “specified that donating unlimited money on campaigns should be considered free speech,” and asserted the court had endorsed the slogan “money equals speech.” The argument ended with a ringing call “to abolish ‘corporate personhood.’”

Citizens United is the most misunderstood decision in the 21st century. That is partly because the opinions in the case ran to 176 pages, and very few people have read them. I doubt anyone on the Berkeley City Council has read them.

As it happens, on election day I was teaching the decision in my First Amendment class at UC Berkeley. I felt obligated to tell the students some of the ways Citizens United has been mischaracterized.

First, it did not give corporations the “same rights under the U.S. Constitution” as natural persons. It didn’t give them the right to vote, or the right to contribute directly to a candidate. Nor did it invent the concept of corporate personhood. That was done peremptorily by the court in a railroad case in 1886, without any argument, discussion or analysis. In 1978, the court ruled that political speech in an election did not lose First Amendment protection because of the corporate identity of the speaker, and that became the main theme of Citizens United. The court also protected corporate speech in at least 24 cases before Citizens United, including cases establishing bedrock free speech principles. Those included New York Times v. Sullivan (the right to criticize government without fear of being sued for libel), and the Pentagon Papers case (no “prior restraints”-type government censorship), both won by the Times corporation.

At this point in our history, abolishing corporate personhood would cause all kinds of mischief. The New York Times and all other media corporations would have no First Amendment rights and could be censored at will. (Relying on the Press Clause of the First Amendment is no answer, because the court has rejected the contention that it gives whoever claims to be the “press” – a difficult definitional question in these days of Fox News, Twitter and bloggers — special speech rights not enjoyed by ordinary citizens.) Some Berkeleyans might not be unhappy if government prohibited corporate advertising, thus wiping out the Super Bowl and most media, though few would be pleased if a corporation, not being a “person,” could not be sued for polluting the environment.

Second, the court did not say “money is speech.” It simply quoted from its 1976 decision in Buckley v. Valeo to the effect that restricting the amount of money that can be spent in a campaign restricts the quantity and nature of campaign speech. This is self-evident: it costs money to print and distribute flyers and yard signs, rent billboard space, and buy television and radio time; the less money you can spend, the less you can “speak.” In that sense, the court now treats money as speech, but it doesn’t use the slogan simplistically equating the two.

Berkeleyans were right to lament Citizens United, but for the wrong reasons. It’s clear to me the effect of Citizens United has been singularly unhealthy for our democracy. It put vital free speech principles to the service of corporate interests and the wealthy and powerful. Rather than helping the dispossessed and dissidents who need the amendment to get their voices heard, the court delivered new tools to the powerful to exert even more influence over government. Its uncritical endorsement of corporate speech ignored its intellectually shoddy origins in the 1886 case. Its exacerbation of the problem of money in politics was unnecessary, almost gratuitous.

The court’s fundamental error was in ruling that “independent expenditures” – as opposed to direct contributions to a candidate, which were not involved in Citizens United and remain restricted — can have no corrupting effect. Justice Anthony Kennedy’s willfully naïve opinion admitted that independent spending can buy influence, but concluded that “ingratiation and access” is not the kind of corruption government has the power to prevent. Conferring this protected status on independent expenditures is what allows Super PACs and Section 501(c)(4) nonprofit advocacy organizations to spend without limits on local, state, and federal elections. This is the main vice of Citizens United, and what needs fixing. My own constitutional amendment would simply say “Nothing in this constitution shall prevent Congress or any state from reasonably regulating and limiting contributions and expenditures relating to elections.”

One of the ironies about Citizens United is that, after successfully persuading the court to give them the right to “speak” publicly in ads supporting or opposing candidates, corporations didn’t take out their own commercials. I’ll bet you haven’t seen a single ad in which a CEO signs off as having “approved this message.” For good reason: companies, especially those who sell their products or services to consumers, don’t want to alienate half of their customer base by visibly taking sides in a partisan election. That’s why they shovel their money, via “independent expenditures,” into 501(c)(4) organizations like the U.S. Chamber of Commerce and the Koch brothers organizations, where they can remain anonymous.

Having given my students a more accurate picture of Citizens United, I told them I was going from the classroom directly to the polling place, where I would ignore the mischief that Proposition P’s literal implementation would cause and vote for the symbolic Berkeley proposition. We should grasp every opportunity not to dilute Citizens United’s First Amendment principles but to oppose its real world effects.

By the way, in the Proposition P campaign there were no independent expenditures, and no contributions, pro or con.

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William Bennett Turner teaches First Amendment courses at UC Berkeley, and is the author of 'Figures of Speech: First Amendment Heroes and Villains' (2011).