"What Is the First Amendment For?" by STANLEY FISH, New York Times 2/1/2010
Citizens United v. Federal Election commission — the recent case in which the Supreme Court invalidated a statute prohibiting corporations and unions from using general treasury funds either to support or defeat a candidate in the 30 days before an election, and overruled an earlier decision relied on by the minority — has now been commented on by almost everyone, including the president of the United States in his state of the union address.
I would like to step back from the debate about whether the decision enhances our First Amendment freedoms or hands the country over to big-money interests, and read it instead as the latest installment in an ongoing conflict between two ways of thinking about the First Amendment and its purposes.
We can approach the conflict by noting a semantic difference between the majority and concurring opinions on the one hand and the dissenting opinion — a 90-page outpouring of passion and anger by Justice Stevens — on the other. The word most important to Justice Kennedy’s argument (he writes for the majority) is “chill,” while the word most important to Stevens’s argument is “corrupt.”
Kennedy, along with Justices Roberts, Alito, Thomas and Scalia (the usual suspects), is worried that the restrictions on campaign expenditures imposed by the statute he strikes down will “chill” speech, that is, prevent some of it from entering the marketplace of ideas that must, he believes, be open to all voices if the First Amendment’s stricture against the abridging of speech is to be honored. (“[A] statute which chills speech can and must be invalidated.”) Stevens is worried — no, he is certain — that the form of speech Kennedy celebrates will corrupt the free flow of information so crucial to the health of a democratic society. “[T]he distinctive potential of corporations to corrupt the electoral process [has] long been recognized.”
When Stevens writes “has long been recognized,” he is invoking the force of history and asking us to take note of the reasons why many past court decisions (including one written by then-Chief Justice Rehnquist) have acknowledged the dangers posed by corporations, dangers that provoked this declaration by Theodore Roosevelt in 1905: “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.”
Behind such strong statements is a twin fear: (1) the fear that big money will not only talk (the metaphor that converts campaign expenditures into speech and therefore into a matter that merits First Amendment scrutiny), but will buy votes and influence, and (2) the fear that corporations and unions, with their huge treasuries, will crowd out smaller voices by purchasing all the air time and print space. The majority, Stevens admits, does “acknowledge the validity of the interest in preventing corruption,” but, he complains, it is not an interest it is interested in, for “it effectively discounts the value of that interest to zero.”
That’s not quite right. Kennedy and the others in the majority make the proper noises about corruption; they just don’t think that it is likely to occur and they spend much time explaining why corporations are citizens like anyone else (a proposition Stevens ridicules) and why, for various economic and public-relation reasons, they pose no threat to the integrity of the electoral process.
Even if there were substance to the charge of “undue influence” exercised by those with deep pockets, it would still be outweighed, says Kennedy, citing an earlier case, “by the loss for democratic process resulting from the restrictions upon free and full discussion.” The question of where that discussion might take the country is of less interest than the overriding interest in assuring that it is full and free, that is, open to all and with no exclusions based on a calculation of either the motives or the likely actions of individual or corporate speakers. In this area, the majority insists, the state cannot act paternally. Voters are adults who must be “free to obtain information from diverse sources”; they are not to be schooled by a government that would protect them from sources it distrusts.
Notice how general Kennedy’s rhetoric has become. The specificity of Stevens’s concerns, rooted in the historical record and in the psychology and sociology of political actors, disappears in the overarching umbrella category of “information.” The syllogism is straightforward. Freedom of information is what the First Amendment protects; corporation and unions are sources of information; therefore their contributions — now imagined as wholly verbal not monetary; the conversion is complete — must be protected, come what may.
The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.
Pay note to, "now imagined as wholly verbal not monetary; the conversion is complete — must be protected, come what may." This is the key qualifier.
It IS the deep-pockets of corporations that is a threat to our election process. Is there any doubt in anyone's mind that BIG corporations tend to be corrupt? Really, especially taking into account recent history (Enron, Worldcom, just to name 2 examples).
And is there any doubt that these corporations would use their financial power to corrupt our election process in their favor, over the interest of individual citizens? Now add the fact that many corporations are foreign entities.
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