Citizens United: John Paul Stevens’ Dissent.

Posted April 10, 2014

by Jerry Alatalo

“Our Constitution is in actual operation; everything appears to promise that it will last; but nothing in this world is certain but death and taxes.”

– Benjamin Franklin (1706-1790)

cropped-suits-22.jpgAfter watching a woman on Move to Amend’s YouTube channel speak the words of retired Supreme Court Justice John Stevens’ dissenting opinion on the Citizens United case, then hearing the suggestion that Mr. Stevens dissent would offer the best argument for state lawmakers to pass resolutions for an amendment to the United States constitution to overturn it, it seemed obvious to include a segment of his opinion here.

The following is from the United States Supreme Court website. Justice Stevens’ dissenting opinion is much longer than what is presented here, this is the last portion of it. Honestly, I had never read any of his opinion till today. So, in an effort to follow the suggestion of making Justice Stevens dissent on Citizens United the basis for overturning it by amendment, perhaps reading his argument will motivate men and women to disseminate his opinion as well.

Some 16 states have adopted resolutions to overturn Citizens United, and that number may have grown since the McCutcheon decision. This means states have requested Congress to start the amendment process. The amendment is drafted – when the house and senate pass it with a super-majority (2/3) it goes to the states for ratification. When 3/4 of the states ratify the amendment, it becomes part of the constitution.

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 79 Cite as: 558 U. S. ____ (2010) Opinion of STEVENS, J.

In short, regulations such as §203 and the statute upheld in Austin impose only a limited burden on First Amendment freedoms not only because they target a narrow subset of expenditures and leave untouched the broader “public dialogue,” ante, at 25, but also because they leave untouched the speech of natural persons. Recognizing the weakness of a speaker-based critique of Austin, the Court places primary emphasis not on the corporation’s right to electioneer, but rather on the listener’s interest in hearing what every possible speaker may have to say. The Court’s central argument is that laws such as §203 have “‘deprived [the electorate] of information, knowledge and opinion vital to its function,’” ante, at 38 (quoting CIO, 335 U. S., at 144 (Rutledge, J., concurring in judgment)), and this, in turn, “interferes with the ‘open marketplace’ of ideas protected by the First Amendment,” ante, at 38 (quoting New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008)).

There are many flaws in this argument. If the overriding concern depends on the interests of the audience, surely the public’s perception of the value of corporate speech should be given important weight. That perception today is the same as it was a century ago when Theodore Roosevelt delivered the speeches to Congress that, in time, led to the limited prohibition on corporate campaign expenditures that is overruled today. See WRTL, 551 U. S., at 509–510 (Souter, J., dissenting) (summarizing President —————— owners may speak in their own names, rather than the business’, if they wish to evade §203 altogether. Nonprofit corporations that want to make unrestricted electioneering expenditures may do so if they refuse donations from businesses and unions and permit members to disassociate without economic penalty. See MCFL, 479 U. S. 238, 264 (1986). Making it plain that their decision is not motivated by a concern about BCRA’s coverage of nonprofits that have ideological missions but lack MCFL status, our colleagues refuse to apply the Snowe-Jeffords Amendment or the lower courts’ de minimis exception to MCFL. See ante, at 10–12. 80

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Roosevelt’s remarks). The distinctive threat to democratic integrity posed by corporate domination of politics was recognized at “the inception of the republic” and “has been a persistent theme in American political life” ever since. Regan 302. It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.

Austin recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfai[r] influence” in the electoral process, 494 U. S., at 660, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities,” Brief for American Independent Business Alliance as Amicus Curiae 11; see also ALI, Principles of Corporate Governance: Analysis and Recommendations §2.01(a), p. 55 (1992) (“[A] corporation . . . should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain”). In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests of local voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or no correlation” to the ideas of natural persons or to any broader notion of the public good, 494 U. S., at 660. The opinions of real people may be marginalized. “The expen-

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diture restrictions of [2 U. S. C.] §441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.” MCFL, 479

U. S., at 259.

In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate “domination” of electioneering, Austin, 494 U. S., at 659, can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders “‘call the tune’” and a reduced “‘willingness of voters to take part in democratic governance.’” McConnell, 540 U. S., at 144 (quoting Shrink Missouri, 528 U. S., at 390). To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation. On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to “hold officials accountable to the people,” ante, at 23, and disserve the goal of a public debate that is “uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). At the least, I stress again, a legislature is entitled to credit these concerns and to take tailored measures in response.

The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special 82

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“advantages” in the legal realm, Austin, 494 U. S., at 659, may translate into special advantages in the market for legislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, “provides a simple way to channel rents to only those who have paid their dues, as it were. If you do not own stock, you do not benefit from the larger dividends or appreciation in the stock price caused by the passage of private interest legislation.” Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for Corporate Charters, 69 U. Chi. L. Rev. 1103, 1113 (2002). Corporations, that is, are uniquely equipped to seek laws that favor their owners, not simply because they have a lot of money but because of their legal and organizational structure. Remove all restrictions on their electioneering, and the door may be opened to a type of rent seeking that is “far more destructive” than what noncorporations are capable of. Ibid. It is for reasons such as these that our campaign finance jurisprudence has long appreciated that “the ‘differing structures and purposes’ of different entities ‘may require different forms of regulation in order to protect the integrity of the electoral process.’” NRWC, 459

U. S., at 210 (quoting California Medical Assn., 453 U. S., at 201).

The Court’s facile depiction of corporate electioneering assumes away all of these complexities. Our colleagues ridicule the idea of regulating expenditures based on “nothing more” than a fear that corporations have a special “ability to persuade,” ante, at 11 (opinion of ROBERTS,

C. J.), as if corporations were our society’s ablest debaters and viewpoint-neutral laws such as §203 were created to suppress their best arguments. In their haste to knock down yet another straw man, our colleagues simply ignore the fundamental concerns of the Austin Court and the 83 Cite as: 558 U. S. ____ (2010)

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legislatures that have passed laws like §203: to safeguard the integrity, competitiveness, and democratic responsiveness of the electoral process. All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, “that there is no such thing as too much speech,” Austin, 494 U. S., at 695 (SCALIA, J., dissenting)).74 If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s premise would be sound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.

None of this is to suggest that corporations can or should be denied an opportunity to participate in election campaigns or in any other public forum (much less that a work of art such as Mr. Smith Goes to Washington may be banned), or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is that Austin’s “concern about corporate domination of the political process,” 494 U. S., at 659, reflects more than a concern to protect governmental interests outside of the First Amendment. It also reflects a concern to facilitate First Amendment values by preserving some breathing room around the electoral “marketplace” of ideas, ante, at 19, 34, 38, 52, 54, the marketplace in which the actual people of this Nation determine how they will

—————— 74Of course, no presiding person in a courtroom, legislature, classroom, polling place, or family dinner would take this hyperbole literally. 84

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govern themselves. The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other. There are, to be sure, serious concerns with any effort to balance the First Amendment rights of speakers against the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to “First Amendment principles” depends almost entirely on the listeners’ perspective, ante, at 1, 48, it becomes necessary to consider how listeners will actually be affected.

In critiquing Austin’s antidistortion rationale and campaign finance regulation more generally, our colleagues place tremendous weight on the example of media corporations. See ante, at 35–38, 46; ante, at 1, 11 (opinion of ROBERTS, C. J.); ante, at 6 (opinion of SCALIA, J.). Yet it is not at all clear that Austin would permit §203 to be applied to them. The press plays a unique role not only in the text, history, and structure of the First Amendment but also in facilitating public discourse; as the Austin Court explained, “media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public,” 494 U. S., at 667. Our colleagues have raised some interesting and difficult questions about Congress’ authority to regulate electioneering by the press, and about how to define what constitutes the press. But that is not the case before us. Section 203 does not apply to media corporations, and even if it did, Citizens United isnot a media corporation. There would be absolutely no reason to consider the issue of media corporations if the majority did not, first, transform Citizens United’s as applied challenge into a facial challenge and, second, invent the theory that legislatures must eschew all “identity”-based distinctions and treat a local nonprofit news 85 Cite as: 558 U. S. ____ (2010)

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outlet exactly the same as General Motors.75 This calls to mind George Berkeley’s description of philosophers: “[W]e have first raised a dust and then complain we cannot see.” Principles of Human Knowledge/Three Dialogues 38, ¶3

(R. Woolhouse ed. 1988).

It would be perfectly understandable if our colleagues feared that a campaign finance regulation such as §203may be counterproductive or self-interested, and therefore attended carefully to the choices the Legislature has made. But the majority does not bother to consider such practical matters, or even to consult a record; it simply stipulates that “enlightened self-government” can arise only in the absence of regulation. Ante, at 23. In light of the distinctive features of corporations identified in Austin, there is no valid basis for this assumption. The marketplace of ideas is not actually a place where items—or laws—are meant to be bought and sold, and when we move from the realm of economics to the realm of corporate electioneering, there may be no “reason to think the market ordering is intrinsically good at all,” Strauss 1386.

The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced

—————— 75Under the majority’s view, the legislature is thus damned if it does and damned if it doesn’t. If the legislature gives media corporations an exemption from electioneering regulations that apply to other corporations, it violates the newly minted First Amendment rule against identity-based distinctions. If the legislature does not give media corporations an exemption, it violates the First Amendment rights of the press. The only way out of this invented bind: no regulations whatsoever. 86

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the cause of self-government today.

2. Shareholder Protection There is yet another way in which laws such as §203 can serve First Amendment values. Interwoven with Austin’s concern to protect the integrity of the electoral process is a concern to protect the rights of shareholders from a kind of coerced speech: electioneering expenditures that do not “reflec[t] [their] support.” 494 U. S., at 660–661. When corporations use general treasury funds to praise or attack a particular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill. Those shareholders who disagree with the corporation’s electoral message may find their financial investments being used to undermine their political convictions. The PAC mechanism, by contrast, helps assure that those who pay for an electioneering communication actually support its content and that managers do not use general treasuries to advance personal agendas. Ibid. It “‘allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members.’” McConnell, 540 U. S., at 204 (quoting Beaumont, 539 U. S., at 163). A rule that privileges the use of PACs thus does more than facilitate the political speech of like-minded shareholders; it also curbs the rent seeking behavior of executives and respects the views of dissenters. Austin’s acceptance of restrictions on general treasury spending “simply allows people who have invested in the business corporation for purely economic reasons”—the vast majority of investors, one assumes—”to avoid being taken advantage of, without sacrificing their economic objectives.” Winkler, Beyond Bellotti, 32 Loyola(LA) L. Rev. 133, 201 (1998).

The concern to protect dissenting shareholders and union members has a long history in campaign finance 87 Cite as: 558 U. S. ____ (2010) Opinion of STEVENS, J.

reform. It provided a central motivation for the TillmanAct in 1907 and subsequent legislation, see Pipefitters v. United States, 407 U. S. 385, 414–415 (1972); Winkler, 92Geo. L. J., at 887–900, and it has been endorsed in a long line of our cases, see, e.g., McConnell, 540 U. S., at 204– 205; Beaumont, 539 U. S., at 152–154; MCFL, 479 U. S., at 258; NRWC, 459 U. S., at 207–208; Pipefitters, 407 U. S., at 414–416; see also n. 60, supra. Indeed, we have unanimously recognized the governmental interest in “protect[ing] the individuals who have paid money into acorporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed.” NRWC, 459 U. S., at 207–208.

The Court dismisses this interest on the ground that abuses of shareholder money can be corrected “through the procedures of corporate democracy,” ante, at 46 (internal quotation marks omitted), and, it seems, through Internet-based disclosures, ante, at 55.76 I fail to understand how this addresses the concerns of dissenting union members, who will also be affected by today’s ruling, and I fail to understand why the Court is so confident in these mechanisms. By “corporate democracy,” presumably the Court means the rights of shareholders to vote and to bring derivative suits for breach of fiduciary duty. In practice, however, many corporate lawyers will tell you that “these rights are so limited as to be almost nonexis

—————— 76I note that, among the many other regulatory possibilities it has left open, ranging from new versions of §203 supported by additional evidence of quid pro quo corruption or its appearance to any number of tax incentive or public financing schemes, today’s decision does not require that a legislature rely solely on these mechanisms to protect shareholders. Legislatures remain free in their incorporation and tax laws to condition the types of activity in which corporations may engage, including electioneering activity, on specific disclosure requirements or on prior express approval by shareholders or members. 88

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tent,” given the internal authority wielded by boards and managers and the expansive protections afforded by the business judgment rule. Blair & Stout 320; see also id., at 298–315; Winkler, 32 Loyola (LA) L. Rev., at 165–166, 199–200. Modern technology may help make it easier to track corporate activity, including electoral advocacy, but it is utopian to believe that it solves the problem. Most American households that own stock do so through intermediaries such as mutual funds and pension plans, see Evans, A Requiem for the Retail Investor? 95 Va. L. Rev.1105 (2009), which makes it more difficult both to monitor and to alter particular holdings. Studies show that a majority of individual investors make no trades at all during a given year. Id., at 1117. Moreover, if the corporation in question operates a PAC, an investor who sees the company’s ads may not know whether they are being funded through the PAC or through the general treasury.

If and when shareholders learn that a corporation has been spending general treasury money on objectionable electioneering, they can divest. Even assuming that they reliably learn as much, however, this solution is only partial. The injury to the shareholders’ expressive rights has already occurred; they might have preferred to keep that corporation’s stock in their portfolio for any number of economic reasons; and they may incur a capital gains tax or other penalty from selling their shares, changing their pension plan, or the like. The shareholder protection rationale has been criticized as under inclusive, in that corporations also spend money on lobbying and charitable contributions in ways that any particular shareholder might disapprove. But those expenditures do not implicate the selection of public officials, an area in which “the interests of unwilling . . . corporate shareholders [in not being] forced to subsidize that speech” “are at their zenith.” Austin, 494 U. S., at 677 (Brennan, J., concurring).And in any event, the question is whether shareholder 89 Cite as: 558 U. S. ____ (2010)

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protection provides a basis for regulating expenditures in the weeks before an election, not whether additional types of corporate communications might similarly be conditioned on voluntariness.

Recognizing the limits of the shareholder protection rationale, the Austin Court did not hold it out as an adequate and independent ground for sustaining the statute in question. Rather, the Court applied it to reinforce the antidistortion rationale, in two main ways. First, the problem of dissenting shareholders shows that even if electioneering expenditures can advance the political views of some members of a corporation, they will often compromise the views of others. See, e.g., id., at 663 (discussing risk that corporation’s “members may be . . . reluctant to withdraw as members even if they disagree with [its] political expression”). Second, it provides an additional reason, beyond the distinctive legal attributes of the corporate form, for doubting that these “expenditures reflect actual public support for the political ideas espoused,” id., at 660. The shareholder protection rationale, in other words, bolsters the conclusion that restrictions on corporate electioneering can serve both speakers’ and listeners’ interests, as well as the anticorruption interest. And it supplies yet another reason why corporate expenditures merit less protection than individual expenditures.

V  Today’s decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality. Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 is facially unconstitutional only after mischaracterizing both the reach and 90

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rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin the Court’s lawmaking power. Their conclusion that the societal interest in avoiding corruption and the appearance of corruption does not provide an adequate justification for regulating corporate expenditures on candidate elections relies on an incorrect description of that interest, along with a failure to acknowledge the relevance of established facts and the considered judgments of state and federal legislatures over many decades.

In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

I would affirm the judgment of the District Court.

 

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2 thoughts on “Citizens United: John Paul Stevens’ Dissent.

    1. A constitutional convention would straighten out some major issues that have been on the backburner for long enough. Most important the switch from Federal Reserve/private bank creation of debt-based money to sovereign money issued by the Treasury. Then money out of politics, then… Like they say – “follow the money”.

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