In 2010 the Supreme Court issued one of its most controversial decisions in Citizens United v. F.E.C., which found that corporations and labor unions have a liberty interest in freedom of speech that is protected by the First, Fifth, and 14th Amendments to the Constitution that allows them to spend as much money as they want in federal and state elections. The First Amendment provides, in relevant part, that Congress shall make no law abridging the freedom of speech. The Fifth Amendment provides that no person shall be deprived of life, liberty or property without due process of law. And the 14th amendment provides that no state shall deprive any person of life, liberty or property without due process of law.
As a result of the Court’s decision, which partially overturned earlier decisions upholding campaign finance laws, corporations and unions are allowed to spend unlimited amounts of money to advance positions for or against any candidate in an election as long as the expenditures are made independent of the candidate’s campaign. Most of the critics of the decision decry the result: huge amounts of unregulated money flooding into elections. Now any member of Congress or a state legislature has to think carefully about any vote she or he casts, since if that vote offends a corporation or union that entity may spend unlimited amounts of money in the next election to try to ensure that individual’s defeat.
Since the decision was issued, there have been many calls, including a recent one from President Obama, for a constitutional amendment to limit the extent to which corporations or unions can be considered “persons” under the Fifth and 14th Amendments to the Constitution. A listing of the state, local, and federal proposals can be found at One example of an amendment, introduced in the Senate by Vermont Senator Bernie Sanders, provides, in part, “The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.”
There are at least three main problems with such an amendment. First, opponents argue that since corporations or unions are in essence associations of citizens they should have the same constitutional rights as citizens. Second, given that an amendment would have to pass both houses of Congress with a two-thirds vote and three-fourths of the state legislatures would have to approve it, the odds of ever getting it adopted are not good, especially in light of the money that might be spent to ensure it was defeated. Third, the Bill of Rights has never been amended, and such an amendment would represent the first time that language had been added to the Constitution to limit the application of Bill of Rights provisions. That was one of the major objections to an amendment to prohibit flag burning, which never gained sufficient votes in the Senate.
There are several arguments in favor of such an amendment. First, proponents contend that it would not be violating the spirit or the intention of the Bill of Rights since the Bill of Rights was adopted to protect individual citizens from the newly powerful federal government, not to protect business entities. It is worth noting that the University’s founder, Thomas Jefferson, expressed concern about the potential political power of corporations. Second, allowing corporations or unions to spend as much as they like weakens the meaning of free speech for everyone else since the average individual, i.e. the great majority of citizens, could not hope to compete in the marketplace of ideas. Third, giving such an advantage to corporations and unions corrupts the very idea of representative democracy. The only interests that will be well represented are the interests of those with massive amounts of money.
The Supreme Court could, of course, revisit the subject and reconsider Justice Kennedy’s conclusion in Citizens United that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” No right is absolute, and the Court has held that government regulation of even the most fundamental rights can be upheld if the government can show a compelling interest for that regulation. Preventing the corruption of the political process would seem to provide that compelling interest. Whether a majority of the Supreme Court’s justices will eventually reach such a conclusion remains to be seen and will depend on the extent to which the huge amounts of money now flowing into elections increases the perception of corruption. It may also depend on who wins the presidential election and gets to appoint the next justices to the Supreme Court.
James S. Todd is a lecturer in the Dept. of Politics.
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