POLITICS MARCH 16, 2010
There has been a growing fury about the Supreme Court’s decision in the Citizens United case, but much of that fury hangs upon an odd reading of the Court’s opinion. The Court, it is said, has given corporations all the rights of “persons.” It has elevated these artificial beings into entities “endowed by their Creator” (us) “with certain unalienable rights,” including the right to free speech.
No doubt the Court has a long history of recognizing the “person” in “Inc.” But this current wave of criticism is hard to understand, because the Court’s entire Citizens United opinion hung upon the fact that the First Amendment says nothing about who or what is to get the benefit of its protection. It simply bans certain kinds of regulation. As Justice Scalia put it in his concurrence: “The Amendment is written in terms of ‘speech,’ not speakers.” Thus, the government is blocked by the First Amendment from constraining the free speech of any entity, whether that entity is a corporation or a dolphin.
This interpretation of the First Amendment is going to create real trouble for the Court when Congress gets around to closing the gap that the Court’s opinion seems to create. If it is the regulation, and not the speaker that matters, then the Chinese are no different from the Chamber of Commerce. So how can the Court honestly uphold the inevitable law limiting the Chinese from campaigning, when they’ve just told us that identity doesn’t matter?
One need not be xenophobic to be troubled by the idea of foreign influence in American elections. Certainly the Framers were. The point is not that foreigners are evil. It is rather that elections are private. It is we—citizens—who are to select who is to govern us. And it is completely appropriate for us to protect the debate we have about that selection by limiting disproportionate spending by non-citizens.
This insight gives a clue to perhaps the most sensible constitutional response to the Supreme Court’s decision. Not, as an angry gaggle of activists have proposed, through an amendment aimed at denying what Citizens United never asserted—that corporations are persons. But instead, through an amendment that recognizes what no one has ever asserted—that whether or not they are persons, corporations are not United States citizens. And if there is something appropriate to keeping the conversation about who is to govern us to us citizens, there may well be something appropriate in protecting elections against undue influence by non-citizens.
A simple amendment would give Congress precisely this power:
Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.
This amendment would not require that Congress enact any speech-limiting legislation. My own view is that we should encourage the broadest range of free speech, including speech by corporations, Canadians, and curious dolphins (at least when we learn to understand what they’re saying). To the extent members of Congress are, and seem to be, independent of these expenditures, there is no good reason for the state to limit them. But the amendment would give Congress a power to limit campaign expenditures by non-citizens, at least during a narrow window when America is focused upon the question of whom they should elect to represent them.
That power would not be absolute. Before the 60-day window, anyone or anything could say anything they like. And during the 60-day window, Congress could only limit campaign expenditures, not non-citizen political speech generally. And within that narrow class, it could not even ban campaign expenditures completely. Any citizen so moved, of course, would be free to then amplify those expenditures with his or her own funds. For instance, if George Soros agrees with an argument made by an Hungarian, he’d be free to spend his own money supporting it, since he, unlike the Hungarian, is a citizen, and his speech, unlike the speech of non-citizens, remains constitutionally protected. Likewise, if Rex Tillerson agrees with an argument made by Exxon, he’d be free to spend his own money supporting it, since Tillerson is a citizen, and Exxon is not. No argument or idea would be silenced by this amendment. And any argument that resonates could be amplified by citizens as loudly as they wish.
Or consider this: Just as the Supreme Court allows essentially anyone to file a “friend of the Court” brief for it to consider when deciding a case, and any party in a case is free to amplify or adopt any of the arguments in those briefs, the Court still strictly limits those who are permitted to argue before it, and strictly balances the quantity of argument that each side gets to make. Does the Court’s heavy-handed restriction on how much each side gets to say and who gets to say it violate any free speech principle? Does the First Amendment require that the Petitioner be free to sell part of its argument time to the Respondent? Not, in my view, if sanity and reason is to be a part of the market for free speech.
The justification for the power to limit non-citizen campaign expenditures goes back to the core justification for democracy. The Framers wanted to build a government “dependent upon the People” by limiting the risk that the government might become dependent upon anything else. The Constitution explicitly bans “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” because the Framers wanted our officers focused upon the people, not upon foreign powers. Likewise, giving Congress the power to limit campaign expenditures of anyone save citizens would help avoid a dependency, either real or perceived, upon non-citizens.
But why not just allow anyone to speak, and measure a candidate by the company he keeps? If Exxon is spending $10,000,000 to support a candidate, won’t the voters of the district recognize that (for the Court upheld disclosure requirements), and vote against the candidate because of that fact alone?
Yet it is here that the Court’s practical insight into the ways of politics is most strained. If Exxon wants candidate X to win, but recognizes that a $10,000,000 expenditure by it would be toxic for candidate X, then why wouldn’t they spend the $10,000,000 on candidate Y? They, like anyone, can measure the effect of their speech. Why wouldn’t they tailor their speech to achieve the desired effect?
More ominously still, as recent scholarship by Marcos Chamon and Ethan Kaplan demonstrates, it may well be that the mere threat of spending a large amount on one side of a campaign would be enough to buy the loyalty of an incumbent. Like the Republicans with the filibuster, if Exxon can merely threaten to enter a race on the opponent’s side, that may be enough to induce the threatened candidate to behave. On this account, the expenditures we see would just be the tip of the influence iceberg. And influence flowing just underwater (call this the “iceberg effect”) would be invisible, and thus be embarrassing to no one.
“We the People” have a completely compelling reason to assure that representatives remain dependent upon citizens, and not upon special interests. But the Supreme Court has made that practically impossible. The “iceberg effect” means we cannot even know what influence was exercised. That uncertainly will only make suspicions grow.
Only an amendment can reverse this now. But that amendment should restrict freedom as little as possible. Giving Congress the power to limit non-citizen campaign expenditures is power enough to assure that Congress has but one dependency—upon the People. If exercised properly, it could help restore the people’s trust in this key institution of American democracy.
Lawrence Lessig is professor of law and director of the Edmond J. Safra Center for Ethics at Harvard University, and the author most recently of Remix: Making Art and Commerce Thrive in the Hybrid Economy (Penguin).