The spoils of the Citizens United decision and its affront to democratic deliberation
With the campaign season behind voters, guest columnist Johann Neem reflects on the U.S. Supreme Court's Citizens United v. the Federal Election Commission case.
Special to The Times
NOW that the midterm elections are over, we can better grapple with the true costs of the U.S. Supreme Court's decision in Citizens United vs. the Federal Election Commission and the immediate outpouring of cash that shaped the elections' outcome.
The 2010 decision determined that corporations and labor unions are entitled to free speech protection under the First Amendment.
Skeptics following the Citizens United decision suggested the only thing corporations cannot do now is vote, but perhaps the effectiveness of their spending suggests that, indeed, they have found a way to vote by buying enough airtime to make impossible meaningful discussions about candidates and policies. In effect, they determine what opinions can be heard.
There have been many essays written on why it is wrong to consider a corporation or a union a person entitled to the rights and privileges of natural people. Most of these critics point to the simple fact that a corporation is, in the words of Chief Justice John Marshall in his 1819 Supreme Court decision extending federal protection to corporate charters, an "artificial being, invisible, intangible, and existing only in contemplation of law."
Certainly, corporations are not natural people. For starters, they have achieved immortality. More important, they are created to carry out specific purposes, whereas most natural people belong to multiple communities — their town, church, nation, ethnicity, profession, etc. — that make up their identities.
Whereas a person is a complex being, a corporation is a single-minded entity focused on achieving its sole purpose. People, on the other hand, are always balancing personal self-interest against the values they hold and the commitments they share with other people.
But we have missed the larger problem with Citizens United. By granting First Amendment speech protection to corporations, the Supreme Court misunderstood the purpose of political speech altogether. To the Supreme Court, elections are about competing interests, and any person, group or corporation with an interest ought to have the ability to speak his, her or its mind.
But the premise of the First Amendment is that citizens must be free to speak, not only because this is a fundamental right of human existence, but also because democracy depends on deliberation. Deliberation is not the clash of interests but rather the conversation over the common good that takes place among reasonable beings.
Since Plato and Aristotle, we have assumed that the capacity to reason is what distinguishes human beings from animals and things. In dialogue with others, our presuppositions are challenged, we revise our opinions based on alternative ideas, and come to reasoned judgments different from what we would have concluded before.
Deliberation depends on dialogue, on conversation. Its premise is the clash of ideas, not interests. It requires people capable of reasoning. Corporations, however, do not reason; they are incapable of deliberation. Their minds cannot be changed; their presuppositions cannot be challenged; they cannot enter a town hall and engage in discussion with their fellow citizens.
If politics is about nothing more than promoting one's interests, than the interest with the most money will win. But if the First Amendment is really about protecting the ability of reasonable people to engage in deliberation over their community's future, then the real failure of Citizens United is not that it unleashed corporate and union spending, but that it undermined the higher aspiration for popular sovereignty enshrined in our Constitution.Johann Neem is associate professor of history at Western Washington University and author of "Creating a Nation of Joiners: Democracy and Civil Society in Early National Massachusetts" (2008).