Free Speech, Democracy, and the Citizens United Decision

This post is cross-posted at the C-K Faculty Blog.

Last week, in Citizens United v. Federal Election Commission, the Supreme Court overruled its previous doctrine and declared that the First Amendment protects the rights of business corporations to run advertisements to support or oppose candidates for public office. The 5-4 decision reflected a familiar division between the Court’s conservative and liberal wings: Justice Kennedy’s majority opinion was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, while Justice Stevens’s dissent was joined by Justices Ginsburg and Breyer and the Court’s newest member, Justice Sotomayor.

One of most striking things about the Citizens United decision is the way in which the Justices relied on the same concepts to reach diametrically opposite results. For Justice Kennedy, the decision was necessary to protect the integrity of the democratic process. By contrast, Justice Stevens insisted that the Court’s decision would gravely endanger our democracy. The academic and political reactions to Citizens United have reflected the same basic disagreement. To understand what is at stake in Citizens United, we need to understand the basis of this disagreement.

Justice Kennedy’s argument for the majority is relatively straightforward. Election ads are a form of political speech. Because such speech lies at the heart of the First Amendment, it can be regulated (if at all) only where the government can satisfy the requirements of “strict scrutiny” by making an irrefutable case that the regulation is necessary to promote a compelling government interest. Justice Kennedy then argues that the various interests that the government has urged for barring corporate election advertising -- such as the need to prevent corruption -- fail to meet this high standard of justification.

In dissent, Justice Stevens argues that the majority fails to appreciate the strength of the government interests at stake. But the source of disagreement runs much deeper than that: the dissent and the majority seem to reflect fundamentally different views of free speech and the political process.

The dissent’s view can be described as civic republican -- a view that in the First Amendment realm is best represented by the judicial opinions of Justice Brandeis and the writings of Alexander Meiklejohn.[1] On this view, individuals have two different capacities. In addition to being private persons who pursue their own interests, they are citizens who actively participate in the process of democratic self-government . Public debate is understood as a forum in which free and equal citizens deliberate together about the public good. The First Amendment bars censorship of speech in order to enable citizens to govern themselves, an activity through which they develop some of their most important faculties as human beings.

From this perspective, it is easy to see why the dissent rejects the notion that corporations have First Amendment rights to participate in elections. Corporations are private entities that are organized to pursue the economic interests of their shareholders. They are not citizens who are capable of deliberating with other members of the political community about the common good. To allow corporations to influence or even dominate the electoral process by means of the vast amounts of wealth that they have been permitted to accumulate for economic reasons would undermine the integrity of the democratic process. For this reason, the dissent argues that First Amendment values require restricting rather than protecting corporate electoral speech.

The majority opinion rests on a very different view of the democratic process -- a view that is sometimes described as classical liberalism or modern interest-group pluralism.[2] In contrast to civic republicanism, this view tends to elide the distinction between the private and public capacities of individuals. Individuals pursue their own interests not only in the economic but also in the political realm. Corporations are simply associations that individuals form to promote their own good. There is no such thing as a public good that is distinct from the private goods of members of society. To discern where the aggregate good of the society lies, the people and the government need information from all sectors of society. Because of the vital part that corporations play in the economy, they are indispensable sources of such information. In addition, they can play an important role in protecting private freedom against invasion by the government, which is always tempted to pursue its own interests, or those of powerful groups, rather than those of the society as a whole. There is no good reason to fear that corporations will come to dominate the political process, because the people have the capacity to resist corporate advocacy that runs contrary to their own interests. For all these reasons, this view concludes that the protections of the First Amendment should apply to corporations as well as natural persons.

This account may help illuminate the disagreement in Citizens United. In a sense, however, the account only makes it more difficult to determine whether the majority or the dissent is correct, because it suggests that they reflect two fundamentally different philosophies of democracy and freedom of speech. Obviously, this isn’t the place to address such a large issue. But it is possible to identify a couple of lines of argument that can be made against the majority’s position. First, classical liberalism and interest-group pluralism are not necessarily as compatible as is sometimes thought. Classical liberals like Locke hold that different associations are formed for different purposes.[3] From a Lockean perspective, one can make a powerful argument that corporations are formed solely to promote economic interests, and that there is no reason why they should have a right to use the wealth they are permitted to accumulate for this purpose to intervene in elections of officials of the commonwealth, which is an association formed for a very different purpose, namely, to protect individual rights and promote the public good. It is far from clear, then, that classical liberalism would recognize a right to corporate free speech in the electoral process. Yet the force of Justice Kennedy’s position ultimately seems to come from the belief that the First Amendment enshrines a classical liberal right to free speech. If Justice Kennedy were required to rely on interest-group pluralism alone, he would have to formulate a more pragmatic argument for corporate free speech, and thus would also need to confront the strong practical considerations that militate against recognizing such a right.

Second, what makes the choice between the civic republican and the liberal/pluralist views so difficult is that both of these views resonate with our common experience. It may be a mistake to believe that either view captures the inherent nature of political life. Instead, it is possible for a polity to be more civic republican or more liberal/pluralist in character. Whether our society follows one model rather than the other is not something that is simply given, but is a choice that we can make. Indeed, it can be argued that the choice between these two views is one of the most important issues that a society can decide as a matter of collective self-determination. If this is true, then the choice should be made by the people as a whole through the political process, and not by a bare majority of the Supreme Court imposing its own view on the nation.

[1] See, e.g., Whitney v. California, 274 U.S. 357, 372-80 (1927) (Brandeis, J., concurring); ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM (1960).

[2] For a helpful overview of the liberal, republican, and interest-group pluralist views, see WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 48-74 (4th ed., 2007).

[3] See, e.g., JOHN LOCKE, TWO TREATISES OF GOVERNMENT, II § 2 (Peter Laslett ed., Cambridge Univ. Press 1988) (1698); JOHN LOCKE, A LETTER CONCERNING TOLERATION (James Tully ed., Indianapolis, Hackett Publishing Co. 1983) (1st ed., William Popple trans., 1689).