“When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
—Justice Anthony Stevens, from the majority opinion in Citizens United v. Federal Election Commission
You probably haven’t seen Hillary: The Movie. I haven’t seen it either, though I did watch the trailer. By most accounts, it’s a scurrilous and decidedly unartful piece of cinema. It was released by the conservative nonprofit corporation Citizens United during the 2008 Democratic primaries to smear candidate Clinton. Robert Barnes of the Washington Post describes Hillary this way: “It is a nonstop montage of Clinton’s changing hairdos, interspersed with reports about various scandals during the Clinton White House years, critiques of her performance as a senator from New York and as a Democratic presidential candidate, and withering testimony about her alleged lack of character and honesty.” (Other stirring feature-length productions from Citizens United include ACLU: At War with America, Broken Promises: The UN at 60, HYPE: The Obama Effect, and Ronald Reagan: Rendezvous with Destiny.)
The reason you may not have seen Hillary (aside from, perhaps, a predisposition against reporting so slanted it’s practically prone) is that the Federal Election Commission ruled that the film was essentially a 90-minute campaign ad. Citizens United sued. The federal appeals court agreed with the FEC, commenting that Hillary was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office.” Which meant that the film violated some of the restrictions placed on how corporations can spend money within 90 days of an election as per the McCain-Feingold campaign finance law. Citizens United would not be allowed to be show Hillary on cable TV via on-demand, as it had planned.
(A touch of history: The Supreme Court upheld the constitutionality of McCain-Feingold the year after it was passed, in 2003, but the conservative justices made noises at the time that the campaign finance reform law was in many ways at odds with the First Amendment. They suggested that most infringements on speech are a priori unconstitutional; and, my interpretation here, that it is better to preserve an ideal in the abstract—free speech in this case—than to acknowledge practical consequences of allowing groups to spend unlimited amounts of money “speaking” its message during campaign season. “Speech,” of course, means money. Anyone can say whatever they want in the street; the speech at issue is the kind of massive media buys that only big money can afford. The kind that, in profusion, can drown out all the other little, penurious voices.)
On January 22, the Supreme Court ruled 5 to 4 in Citizens United v. Federal Election Commission that not only was the FEC wrong to block the showing of Hillary, but that government should not be in the business of regulating political speech at all. What the ruling boils down to: Let a thousand Swift Boat ads bloom. If a group wants to take down a particular candidate, there is no limit to the amount of money it can spend. (Not incidentally, this is essentially the same court that ruled 5 to 4 not to recount the votes in Florida in Bush v. Gore, if you swap out Rehnquist and O’Connor for Roberts and Alito.)
What the ruling in Citizens United v. Federal Election Commission has done is to give more power to corporations to influence elections. (This applies to labor unions as well, but the pockets of a Wal-Mart or ExxonMobil are an order of magnitude deeper than those of the AFL-CIO.) It also brings corporations closer to being given all the rights of real people. For the premise defining a corporation’s place within the law is that it’s an artificial person. But it poses as a real person. It’s a legal entity separate from its shareholders, and shields them through limited liability. If it goes bankrupt, if it pollutes, if it commits crimes—the corporation is held responsible, not its shareholders. And this is the problem—the corporation, empowered with the rights of a person, does not share any of the responsibilities of a person. A corporation’s main directive is to deliver value to its shareholders. In the case of ExxonMobil, that means dividends; for Citizens United, it’s the advancement of a political agenda. If the CEO of ExxonMobil did not seek to maximize profits from its operations, he would be removed for malfeasance. The term “corporate responsibility” has always been a sham in some sense because of this. Corporations are responsible only to their shareholders.
And now the Supreme Court has given these responsibility-free entities carte blanche to unleash a tidal wave of money (aka “political speech”) into the electoral process. Justice Kennedy believes that “the First Amendment confirms the freedom to think for ourselves.” But just who are the “ourselves” Justice Kennedy is referring to? Is it flesh-and-blood people or artificial people? Corporations are people too, right?
- Photo by Mark Joseph Kelly.