Citizens United vs. Federal Election Commission turns 5 this month, but the damage from the Supreme Court’s revolutionary ruling on campaign finance is just beginning to be felt.
Scholars and pundits will undoubtedly mark the anniversary with commentary on such issues as the troubling rise of “super PACs” and the proliferation of undisclosed contributions known as “dark money.” The biggest long-term impact, however, is the powerful framing effect the decision has had on other areas of the law. With last year’s decision in Burwell vs. Hobby Lobby Stores, the idea that “corporations are people” has spread from campaign finance law into the sphere of religious liberty. And there is no reason to believe it will stop there.
In our legal system, the way an issue is first framed can have powerful and long-lasting consequences. Gordon Silverstein, assistant dean at Yale Law School, has described law as a game of Scrabble — the first tiles placed on the board limit the future moves of the other players. For example, in Buckley vs. Valeo (1976), the first campaign finance case of the modern era, the Supreme Court decided that “money is speech” rather than “money is property.” Once campaign contributions were elevated to a form of political speech, election spending became increasingly difficult to regulate. Like a series of tiles on a Scrabble board, the precedent set by this one decision has determined what is politically possible and judicially permissible in the realm of campaign finance for almost 40 years.
The way an issue is framed in one area of law can also wind up having dramatic effects in other areas. Savvy litigators frame their cases in the context of previous wins. In 2012, religious liberties advocates representing a for-profit corporation, Hobby Lobby, pointed to the Citizens United decision in making their case against the Affordable Care Act’s contraceptive mandate. If for-profit corporations could engage in political speech, why could they not also practice religion?
The strategy proved to be a winning one. The U.S. 10th Circuit Court of Appeals cited Citizens United 12 times in its Hobby Lobby decision, writing, “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.” The Supreme Court majority agreed and extended religious liberty protections to closely held for-profit corporations. The extension of the logic of Citizens United to Hobby Lobby was a seemingly small step. But as Justice Ruth Bader Ginsburg, writing in dissent in Hobby Lobby, warned, “The court, I fear, has ventured into a minefield.”
Minefield or not, the court didn’t venture into this place by accident. The Citizens United case came about through years of groundwork laid by conservative legal counterrevolutionaries connected through the Federalist Society — a network of 40,000 lawyers, judges and academics dedicated to reshaping the law to align with conservative and libertarian principles.
These lawyers nurtured and developed the “corporations are people” frame in their scholarship, at conferences and meetings, and in their legal briefs decades before a Supreme Court majority became receptive to it. Most critically, they dusted off an all-but-forgotten 1978 Supreme Court case challenging a ban on corporate ballot initiative spending — First National Bank of Boston vs. Bellotti. They used it to help build the legal scaffolding of Citizens United. Resurrecting some lost language from Justice Lewis Powell’s opinion in that case (“The inherent worth of speech… does not depend on the identity of its source, whether corporation, association, union or individual”), they took a legal analogy that might have seemed implausible to many — that corporate persons could have 1st Amendment speech rights like human persons — and made it look plausible, even legitimate.
So far, the most acute effects of the Citizens United decision have been on elections and campaigns over the last half-decade. Although these effects could be mitigated by statutes, a constitutional amendment or a future Supreme Court decision, the effect Citizens United has had on other areas of law could be longer-lasting and equally as troubling.
Imagine the variety of ways for-profit corporations might use the “corporations are people” frame to reap additional protections and privileges under the law. Doesn’t antitrust regulation infringe on a corporate person’s freedom of association? Freedom of association is, after all, an essential part of free speech. And, as we have seen, if it can be linked to speech, the claim is at least in play on this Supreme Court’s Scrabble board.
If past experience holds true, the logic behind the Citizens United decision will become increasingly accepted, authoritative and influential. As the late Justice Benjamin Cardozo said, “The power of precedent … is the power of the beaten track.” If the Supreme Court continues to beat the Citizens United track, we can look forward to corporate “people” accruing more and more of the rights and privileges of “We the People.”
Amanda Hollis-Brusky, an assistant professor of politics at Pomona College in Claremont, is the author of “Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution,” to be published this month.
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