The Federalist Blog

The Supreme Court recently held in Citizens United v. Federal Elections Commission that corporations had a First Amendment right to spend money to support or oppose political candidates. The Court struck down federal laws regulating independent political advertising by for-profit and non-profit corporations before an election even as they reaffirmed rules about disclosure and disclosures for ads and against direct corporate giving to candidates.

The court assumed if a corporation could not engage in political speech then neither could major media outlets who advocate for or against candidates via endorsements, opinion columns, etc., because they are themselves corporations. Justice Kennedy speaking for the majority: “The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.”

The major problem with Citizens United and all post commentary is the fact there never was a Federal First Amendment issue involved in the controversial McCain-Feingold Act. By arguing McCain-Feingold violated the First Amendment lead to a major point of constitutional law to be completely ignored. Yes, McCain-Feingold is unconstitutional but not because of the First Amendment, but because of Congress’ lack of authority over regulating pre-election activities.

What purpose did the First Amendment serve under the Federal Constitution? James Madison said it served as proof “that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood; and that the [first] amendment was intended as a positive and absolute reservation of it.”

This means Congress never possessed the needed sovereignty to tell corporations or persons how to spend their money within the several States, and thus, lacked constitutional authority to pass the McCain-Feingold Act. Some might argue the Constitution gives Congress the power to alter the regulation of Times, Places and Manner of holding elections thereby authorizing how money may be spent in federal electioneering. However, the “manner” the Constitution speaks of is restricted only to the manner of how votes shall be casted, e.g., paper ballot or viva voce and not the regulation of any pre-election activity (see here).

There is no Constitutional provision that prevents States from imposing restrictions on corporative spending on any candidate within their limits no more than there was was any question of the exclusive authority of States to impose voter qualifications in both local and Federal elections (again, see here). A State could enact its own McCain-Feingold Act and it would be free of federal constitutional objections.

Additionally, I like to add that it is silly to argue how a corporation might be considered a “person.” Whatever rights a corporation enjoys is dependent upon the rights granted by the law they are created under such as the right to sue and to be sued. Corporations do not vote or sit on juries. Corporations are formed as business entities for purposes of limited liability and not for purposes of taking on a life of an individual person.

A restriction against a corporate entity to do a certain thing is no restriction upon individuals of the corporation. A law that says a corporation cannot vote for a candidate running for public office would not prevent officers or employees from casting a ballot themselves.

As Justice Ruth Ginsburg put it during oral arguments, “a corporation, after all, is not endowed by its creator with inalienable rights.” Justice Sotomayor was on the right track when she suggested the court should revisit the error in Santa Clara County v. Southern Pacific Railroad Company (1886) which “gave birth to corporations as persons.” Justice Sotomayor added, “There could be an argument made that was the Court’s error to start with.”

To quickly sum up, the issue here isn’t freedom of speech but the issue of lack of proper constitutional authority for Congress to regulate by law how much money may be spent and by who during an election. Such an authority as with voter qualifications rests with the States.