« Josh Blackman & Seth Barrett Tillman: The Unresolved Threshold Issues in the Emoluments Clauses Litigation
Michael Ramsey
| Main | Does Originalism Alone Undermine Roe v. Wade?
Chris Green »

09/22/2021

Originalism and Citizens United (Again)
Michael Ramsey

Dean Erwin Chemerinsky (Berkeley) has an op-ed in the L.A. Times calling the Supreme Court Justices "partisan hacks."  At Volokh Conspiracy, Josh Blackman and Jonathan Adler have some sharp responses.  I want to focus on a relatively small part of the op-ed that repeats and amplifies a mistaken talking point.  Dean Chemerinsky writes: 

In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.

Business interests, which overwhelmingly favor Republican candidates in their campaign expenditures, outspend unions by more than 15 to 1. There is no plausible argument that the original meaning of the 1st Amendment included a right of corporations to spend unlimited amounts in election campaigns. Neither political expenditures nor corporations, as we know them today, even existed at the founding of this country.

To be clear, the issue in Citizens United was whether corporations (and labor unions and non-profit associations like the ACLU) could spend money to express their opinions about candidates.  I think there most certainly is a "plausible argument" that the original meaning of the First Amendment included such a right.

(1) "Political expenditures" in the sense of spending money to express views of candidates certainly existed in the founding era; newspapers, for example, routinely did it.  To say that an individual cannot spend money to express a view (e.g., by buying advertising, printing a circular, or renting an auditorium) effectively silences that person.  Among other things, the government could prohibit a person from spending money to print a newspaper.  It seems quite plausible to me that the original meaning of the First Amendment protected such an individual right.

(2) I don't think Chemerinsky thinks otherwise.  His real objection to Citizens United seems to be with extending the free speech right to corporations since the modern version of the corporation didn't exist in 1788.  But that's not a conclusive originalist argument, any more than the fact that the internet didn't exist in 1788 means that the First Amendment doesn't apply to the internet.  The interaction of a clause's original meaning with new technology is sometimes a difficult one, but no originalist thinks that the Constitution applies only to things that existed at the founding.  (Justice Scalia in D.C. v. Heller called such an argument "bordering on the frivolous".)

(3) It's worth noting (though not conclusive for original meaning) that in other areas of constitutional law we routinely assume that corporations are entitled to constitutional protection.  Corporations cannot have their property taken without just compensation and due process of law under the Fifth Amendment.  Newspapers organized as corporations (such as the L.A. Times) cannot be ordered what to print and not to print under the freedom of the press, nor can they be sued for libel without the showing required under New York Times Co. [a corporation!] v. Sullivan.  Churches organized as corporations cannot be denied their right to free exercise.  Indeed, in Austin v. Michigan Chamber of Commerce (the case allowing restrictions on corporate speech expenditures, before Citizens United overruled it), Justice Thurgood Marshall writing for the majority didn't deny that corporations have free speech rights; he concluded that those rights were not infringed by the challenged restriction because the government had shown a "sufficiently compelling rationale" in the restriction to satisfy the First Amendment. 

(4) In any event, the debate over whether corporations themselves have constitutional rights is beside the point.  Corporations are fictional entities; they have no existence apart from their shareholders.  It's the constitutional rights of the individuals who are shareholders that is at stake.  The argument is in effect that the shareholders must give up their constitutional rights in order to act through a corporation.  Perhaps this is constitutional, but that seems at least open to question.  So far as I'm aware, there wasn't any material precedent from eighteenth century English practice or free speech theory suggesting that the government could restrict speech based on a person's occupation (which seems like the nearest eighteenth century analogy).  Moreover, corporations existed in the eighteenth century (albeit in somewhat different form), and I'm not aware of conclusive evidence that they (or rather their shareholders) lacked rights.

Thus the originalist argument for Citizens United is, in oversimplified form, (a) we've always assumed that corporations have rights; (b) regardless, corporations are associations of individuals, and individuals have rights; (c) there's no evidence from the founding era suggesting it would be appropriate to conclude that individuals lose those rights when they associate as a corporation.  Is this absolutely conclusive? No, but recall that Chemerinsky's claim is that there is "no plausible argument" for Citizens United based on the original meaning.  I think the argument above is at least plausible.