The following is an op-ed written by Drew Musto ’19, College of Engineering.
Before I begin, let me make a declaration of modesty. I am by no means a legal expert, and, at this point, having a career as illustrious and fruitful as President Garrett’s is a mere dream. She is, of course, far more intelligent, informed, and experienced than I in matters relating to law and, in particular, the United States Supreme Court, and it is for this reason that I write this article not in criticism, but in genuine confusion.
During the Question & Answer portion of the September 18th faculty panel discussion regarding “Democracy & Inequality,” President Garrett and Professor Robert H. Frank, management and economics, criticized the Supreme Court’s holding in Citizens United v. Federal Election Commission (2010) that the First Amendment permits independent corporate political expenditures.
President Garrett and Professor Frank chastised the ruling for its pernicious consequences on American democracy. Professor Frank derisively highlighted the ruling’s establishment of corporate personhood, and President Garrett pondered how the five-justice majority (Roberts; Scalia; Kennedy, opinion author; Thomas; Alito) could possibly have concluded that unrestricted political donations would not inherently precipitate bribery, for which there exists, in the President’s words, a “compelling State interest” to prevent. Ultimately, the general panel consensus was twofold: Citizens United was wrongly decided, and the case should be overturned.
Frankly, Professor Frank’s comment regarding corporate personhood bewildered me. Though the Court did, in effect, afford Citizens United the same First Amendment rights as a United States citizen, Professor Frank is incorrect on the grounds that (a) Citizens United did not establish corporate personhood, and (b) Citizens United’s adjudication was highly consistent with years of precedent.
Point (a) is a simple factual inaccuracy that, surprisingly, no other panelist identified. Justice Kennedy’s opinion never equates corporations with people (read it here). Furthermore, the equation of corporations with people is no modern concept; the principle’s first use dates back to 1819 in Dartmouth College v. Woodward. Authored by Chief Justice John Marshall, the opinion of the Court, which upheld Dartmouth’s charter with the King of Great Britain in the face of public land seizure by New Hampshire, reads, “…this is a contract the obligation of which cannot be impaired without violating the Constitution of the United States.” The Chief Justice, in his 5-1 majority, established a precedent of granting corporations the same rights as a citizen to contract, and, in so doing, generated a tradition of corporate personhood. Subsequent cases, including Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet (1823), Providence Bank v. Billings (1830), and Santa Clara v. Southern Pacific (1886) continued to implicitly perpetuate the doctrine of corporate personhood until 1888 when, in Pembina Consolidated Silver Mining Co. v. Pennsylvania, the Court plainly declared, “A private corporation is included under the designation of ‘person’ in the Fourteenth Amendment to the Constitution, section I.” In spite of Professor Frank’s lamentation, corporate personhood has been an explicit keystone in the highest Court’s jurisprudence for over 125 years.
Unintentionally or not, President Garrett distanced herself from Professor Frank’s claim by directly addressing the Court’s true reasoning – First Amendment rights. The United States government, according to President Garrett, can restrict speech if it has a “compelling State interest.” The Court responds to this argument by writing that “political speech must prevail against laws that would suppress it by design or inadvertence” (3) and, “There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion” (4). 558 U.S. ___ (2010)
I would argue, however, that we need not dig deep into the Constitution to reach the Court’s conclusion. The characteristic of free speech that makes the First Amendment so essential to our democracy is the freedom of political speech. It is this right that protects the ability of the American people to demand a responsive government. It is this right that arms Americans with the ability to spread ideas and opinions throughout the nation and engender political progress in so doing. It is this right that safeguards the American people from despotic leaders. So, when the five-justice majority asked itself what precedent it wanted to establish with this ruling, it voted to perpetuate the freedom of political speech that is the bedrock of our democracy.
I will close by admitting that the Court’s ruling in Citizens United could very plausibly have dangerous repercussions for our democracy, and I do not disagree with the panel’s conclusion that money in politics threatens democracy. However, what truly perplexed me about the panel and President Garrett’s statements is that they, joining the voices of the people who judge the Court based upon how much they like its rulings rather than the actual legal merits of its rulings, erred in viewing the Supreme Court as a medium through which society achieves desired ends. The Court is a body composed of nine lawyers and legal scholars. The Court’s judgments are based on law, not the nation’s interest. What confused me the most, therefore, was watching the panel conflate the two.
