Let the People Speak: The Case for a Constitutional Amendment to Remove Corporate Speech from the Ambit of the First Amendment
Volume 83, No. 4, Summer 2011
By Robert Weissman [PDF]

The Supreme Court’s decision in Citizens United v. Federal Election Commission rocked the American political landscape. The idea that for-profit corporations now have the same First Amendment protections as real, living human beings, and can spend unlimited amounts to influence elections, was, not surprisingly, greeted with widespread public disdain. In its aggressive handling of an important, but limited, challenge to elements of the Bipartisan Campaign Reform Act (BCRA), Citizens United transformed an otherwise narrow case into a sweeping expansion of corporate rights under the First Amendment. The ultimate decision overturned basic principles of campaign finance law in place for more than sixty years and directly overturned, in whole or in part, two of the Court’s recent decisions. Citizens United was thus a bombshell, both in the sudden appearance of a broad challenge to settled principles and in its dramatic remaking of First Amendment jurisprudence and U.S. election law.

Objections to the Court’s ruling have prompted a public debate about how to mitigate its impact, including the possibility of a constitutional amendment. While any amendment to the U.S. Constitution obviously faces huge hurdles, there is gathering support for the idea. More than three-quarters of a million people have signed petitions calling for an amendment; dozens of Representatives and Senators have expressed their support; and resolutions calling for an amendment are beginning to percolate in towns and states throughout the United States.

This Commentary makes the case for why a constitutional amendment is, in fact, necessary. It begins, in Part II, with a review of the historical evolution of corporate speech rights. Except for cases involving freedom of the press, the Supreme Court did not grant speech rights to for-profit corporations until the 1970s. Moreover, even when it granted speech rights to corporations, the Court acknowledged the special problems posed by the corporate form. Part II thus demonstrates Citizens United’s sharp departure from previous corporate speech jurisprudence. Part III follows with a critique of Citizens United’s holding that there can be no differential First Amendment treatment of corporations and individuals, as well as its failure to analyze the unique problems posed by corporate spending in the electoral arena. Part IV analyzes and criticizes Citizens United’s assertion that corporate independent expenditures—campaign spending not coordinated with candidates—cannot give rise to corruption or even the appearance of corruption. Part V assesses the empirical impact of Citizens United by examining the spending patterns in the 2010 election. Finally, Part VI addresses possible legislative and constitutional remedies to mitigate the damage caused by Citizens United and concludes that a constitutional amendment that removes for-profit corporations from the speech protections of the First Amendment is both appropriate and necessary.

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