People Are Indeed People, and Their Right to Talk About Politics Is Guaranteed by the First Amendment

Saturday marks the two-year anniversary of Citizens United v. FEC, the 2010 case in which the Supreme Court lifted restrictions on political speech by unions and corporations. In a story describing pro-regulation agitation tied to the anniversary, The Washington Post helps perpetuate a common and pernicious misreading of the decision, referring to "the Supreme Court's judgment that corporations have the same rights as people when it comes to political speech." What the Supreme Court actually said is that people do not lose their free speech rights when they organize as corporations, including nonprofit interest groups as well as businesses. The Court said the First Amendment bars Congress from telling the people who run the NRA, the ACLU, Greenpeace, the AFL-CIO, or Walmart that they may not sponsor ads mentioning federal candidates close to an election (the ban on "electioneering communications" imposed by the Bipartisan Campaign Reform Act of 2002) or that they may not explicitly support or oppose a candidate's election (the pre-existing ban on "express advocacy"). To put it another way, the Court said the First Amendment guarantees people the freedom to pool their resources by forming corporations that engage in political speech. These are rights of people, not corporations.

Yet critics of Citizens United bizarrely insist that individual freedom is not impaired by the restrictions they favor. "It's time to stop the unlimited flow of corrupting money into our elections," says a petition circulated by Common Cause (a corporation!). "To do that, we need a constitutional amendment to reverse Citizens United and declare that only people are people." By endorsing this misrepresentation, Post reporter Dan Eggen in effect sides with the decision's opponents in what is supposed to be an evenhanded news story.

Eggen also misreports the regulatory changes advocated by Mitt Romney, saying the Republican presidential contender "has argued in recent days that contribution and spending limits should be removed for candidates as well." There are no spending limits on candidates (unless they agree to them in exchange for public funding). That is hardly a minor point, since the Supreme Court has been saying since its 1974 decison in Buckley v. Valeo that restrictions on spending amount to restrictions on speech (since you can't communicate a message to a mass audience without spending money) and are therefore inconsistent with the First Amendment. That principle helps explain why the courts have held that "the unlimited flow of corrupting money" decried by Common Cause (referring to advertising by "super PACs") is constitutionally protected.

As I argue in my column this week, the rejection of spending limits also casts doubt on the contribution limits that the Supreme Court upheld in Buckley. The Court's distinction between spending and contributions is like saying the government may not dictate The Washington Post's budget because that would violate freedom of the press but may control the flow of money to the Post (a corporation!) from shareholders, subscribers, and advertisers. In this context, restricting a speaker's income clearly amounts to restricting his speech. The same analysis should apply not only to super PACs, which are free to accept unlimited contributions thanks to court and FEC decisions condemned by Common Cause, but also to political candidates, who are still constrained by contribution caps.

I considered the overwrought reaction to Citizens United in the December 2010 issue of Reason.

Addendum: In a recent interview with Salon, legendary First Amendment defender Floyd Abrams corrects several misconceptions about the decision's impact.