|Professor Seth Kreimer questions the wisdom of the Supreme Court's Citizens United decision.|
Do corporations have the same right to spend money on political advocacy as individual voters? This was the underlying question taken up last May as Penn Law professors and distinguished alumni debated whether the Supreme Court's decision to overturn years of campaign finance law in the Citizens United case fundamentally corrupts or improves the political process.
During a panel discussion over Reunion weekend, professors Kermit Roosevelt and Seth Kreimer questioned the wisdom of the Supreme Court's 5-4 decision to allow unlimited corporate expenditures for political communications.
The case was brought to the Supreme Court in March by Citizens United, a nonprofit corporation that produced a documentary denouncing Hillary Clinton and wanted to make it freely available to video-on-demand viewers. A three-judge court had previously denied the corporation the right to do so.
But in his decision for the Supreme Court, Justice Kennedy wrote that corporations' First Amendment right to free speech would be violated if the government limited the amount they could spend on political communications, overruling previous Supreme Court opinions that legalized those limits, such as Austin v. Michigan Chamber of Commerce and McConnell v. FEC.
Kreimer noted that the case was decided on grounds not litigated in the trial court and criticized Kennedy's factual assumption: that Austin had been used to deprive U.S. citizens of ideas and expressions crucial to democracy.
"Any individual owner of a corporation burdened by the expense of having to set up a political action committee can simply make contributions in his or her own name," said Kreimer.
"As a matter of read world observation of the airwaves around the recent health care debate, it is far from clear that there was much 'muffling' going on … And it's also far from clear that our society suffers from a dearth of corporate political advocacy."
Roosevelt went further, suggesting that Citizens United may distort the political process by encouraging speech that deceives or falsely persuades an intially impartial audience. Corporate owners, he noted, have a legal obligation to maximize their shareholders' wealth, not to enhance democracy.
"Corporate speech is not likely to match up with the interests of flesh-and-blood people, or to be crucial for strong democratic deliberation," Roosevelt said.
But Andrew Morton L'00 dismissed such fears. "The Chicken Little hysteria about billions of dollars flooding into campaigns is just not happening," said Morton, an associate in the Government & Public Policy Department at Foley & Lardner in Washington, D.C. In fact, he argued, wealthy individuals and unincorporated entities wield more financial influence over elections than corporations.
Citizens United will "change the opportunity for small organizations under the corporate code to enter the political process in a way that's certainly not going to distort that process, but will, on the contrary, open up contrary perspectives," Morton said.
Judge Stewart Dalzell W'65, L'69 of the U.S. District Court for the Eastern District of Pennsylvania said the case might have ended differently if the FEC had a better lawyer at the start.
During questioning by the justices, Deputy Solicitor General Malcolm L. Stewart claimed that the government could ban a book if it advocated a political candidate, citing the McConnell case as support. Though Stewart was replaced when the case was reargued, Judge Dalzell said, his chain of reasoning may have convinced some justices that cases like Austin were fundamentally flawed.
"What started out as a narrow statutory issue, through the blunder of an advocate, turned into something much bigger indeed," said Judge Dalzell.