Supreme Court rejects limits
on corporate political spending

By Alan Shapiro

To the Teacher:

On January 21, 2010, the Supreme Court ruled 5-4 that it violates the Constitution to treat corporations and unions differently from individuals on spending for political speech. The ruling created a storm of controversy, offering a teachable moment for students on the Supreme Court, the First Amendment, and the power of corporations in our country.

To engage students in considering how the high court interprets the Constitution, begin with the introductory quiz below, followed by a student reading and class discussion.

Introductory Quiz:
Interpreting the Constitution

1. First Amendment: "Congress shall make no law…abridging the freedom of speech or of the press."

a) As a joke, Fred Jones screams from the stands at a high school football game, "That guy's a terrorist, he's got a bomb!" and causes a stampede. The Supreme Court is to rule on the case: Is Jones' action protected by his constitutional right to freedom of speech, meaning that he cannot be prosecuted-- despite the injuries resulting from his prank? Circle one:

Yes
No
Not Sure

b) Janet Smith prints a pamphlet during wartime arguing that a military draft of citizens is illegal. The Supreme Court will rule on whether Smith is exercising her freedom of speech and freedom of the press and so cannot be prosecuted for damaging the country's war effort. Is her action protected under the First Amendment? Circle one:

Yes
No
Not sure

2. Fourteenth Amendment: "No state…shall…deny to any person with its jurisdiction the equal protection of the law."

a) In 1892, Bill Carpenter, an African-American, is riding the bus. He refuses to leave his front row seat, which is reserved for white people. The Supreme Court will decide whether the police had the right to remove Carpenter and arrest him. Did the authorities violate the 14th Amendment by arresting Carpenter? Circle one:

Yes
No
Not sure

b) In 1951, Maddie Williams and five friends are prevented from enrolling their elementary age children in a nearby neighborhood school reserved for white children, but instead are forced to enroll them in a more distant school for African-American children. The Supreme Court will decide whether Williams' 14th Amendment rights were violated. Were they?

Yes
No
Not sure

After students have completed the quiz, have them discuss their responses in small groups and with the whole class. Click on the "Ideas and Essays" section of www.teachablemoment.org for multiple suggestions about "Engaging Your Class Through Groupwork."

You might tell students that the two First Amendment scenarios described in the quiz are related to a real 1919 Supreme Court decision. Charles Schenk distributed an antiwar pamphlet during World War I and was arrested, tried and convicted under the Espionage Act for attempting to obstruct recruitment for the army. Supreme Court Justice Oliver Wendell Holmes, writing for the majority verdict, argued that the First Amendment did not protect Schenck. Holmes said Schenk's behavior created a clear and present danger. He wrote: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."

The "Bill Carpenter" 14th Amendment scenario is modeled on an 1892 Louisiana case in which Homer Plessy, classified as black, refused to leave his seat in a railroad car designated for white people only and move to a "colored" car. He was arrested and jailed, and his conviction upheld under the doctrine of "separate but equal," which at the time the Supreme Court ruled was a legal equivalent for "the equal protection of the law."

The fourth case is modeled on Brown v. Board of Education. Oliver Brown and a group of other African-Americans were not allowed to enroll their children in the school nearest to their homes because they were reserved for white children under the doctrine of "separate but equal." A unanimous Supreme Court overturned this precedent, ruling, "We conclude that, in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

Student Reading

The First Amendment: "Congress shall make no law…abridging the freedom of speech…."

Does this mean that corporations (or unions, which have much less money available for politicking) have the right to spend as much money on advertisements as they wish to support or oppose a candidate in a political election? According to a recent Supreme Court decision, yes.

This decision also means that it now violates the Constitution to treat people and corporations differently in matters of political speech. And it means that earlier Supreme Court decisions that restricted corporate and union spending going back to 1907 were incorrect and unconstitutional.

All these issues were decided by a 5-4 vote of the Supreme Court on January 21 in a case called Citizens United v. Federal Election Commission (FEC).

The Constitution is a document written and approved by men who lived more than 200 years ago. Exactly what did they mean by "Congress shall make no law…abridging the freedom of speech"? Exactly what did the legislators who wrote and approved the Fourteenth Amendment 145 years ago mean by "No state…shall…deny to nay person within its jurisdiction the equal protection of the law."?

The Constitution states: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties…." The Supreme Court is composed of nine individuals with lifetime appointments. They decide whether or not to hear a legal case petitioners bring to them. If they accept a case, they listen to testimony from plaintiffs and defendants, ask questions, and they study the case and similar ones the court has considered. Ultimately they vote, but rarely unanimously, on how the Constitution should be interpreted in the particular case before them.

The Citizens United case stemmed from a 2008 film, "Hillary: The Movie," a scathing attack on Hillary Clinton, who was then running for president. Citizens United, a conservative non-profit corporation, produced the film, but few Americans saw it because the Federal Election Commission declared that it broke the law that restricted campaign advertising. A lower court upheld the FEC's ruling.

The law in question required that that the producers disclose the names of the film's financial supporters. It also restricted when the film could air on TV. But Citizens United argued that the movie was not "electioneering communication," but rather "a documentary" and therefore not subject to campaign finance rules enforced by the FEC.

The Supreme Court decision overturned the lower court ruling. Writing for the majority, Justice Anthony Kennedy declared:

"Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion."

In other words, corporations and individual people are equal under the First Amendment. The Supreme Court decided, in a reversal of its previous decisions, that distinguishing between "certain preferred speakers" (like individuals) and "certain disfavored speakers" (like corporations) violates the Constitution. When it comes to political speech, the Court now recognizes no difference between corporations and individuals.

Justice John Paul Stevens disagreed. Writing for the four minority members of the Supreme Court, he stated:

"Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races." Justice Stevens also criticized the majority for failing to show "due respect for precedent."

To rephrase the minority's argument: Corporations are run and controlled by people who may not even live in a district or state where an election is taking place. Their interests and the interests of registered voters who do live there may be very different. Corporations and individual people differ in a number of other ways, too, including how much money they have. The Constitution therefore requires laws to prevent the possible negative effects of corporate spending in political campaigns.

Before this latest Supreme Court decision, U.S. campaign law prevented a corporation from spending money on elections from its earnings. It could spend only what its political action committee raised from contributions by employees and executives. For example, in 2008 Exxon Mobil raised about $1 million from such contributions. But now "the world's biggest oil company can spend as much as its management cares to siphon from its earnings--which in 2008 amounted to $45 billion…." (www.dailykos.com, 1/22/10)

Responding to Justice Stevens' charge that the majority had failed to give "due respect for precedent," Chief Justice Roberts responded that such respect must have limits. Otherwise, he wrote, "segregation would be legal, minimum wage laws would be unconstitutional and the government could wiretap ordinary criminal suspects without first obtaining warrants."

Senate Minority Leader Mitch McConnell, a Republican, said, "For too long, some in this country have been deprived of full participation in the political process. With today's monumental decision, the Supreme Court took an important step in the direction of restoring the First Amendment rights of these groups."

But President Obama said the ruling gives "a green light to a new stampede of special interest money in our politics….It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What are some significant problems in interpreting the Constitution?

3. Explain the Supreme Court decision in the Citizens United case.

4. What were reasons why the four-justice minority disagreed?

5. How do Justice Stevens and Chief Justice Roberts differ on the role of precedent in making Supreme Court decisions?

6. How do Senator Mitch McConnell and President Obama differ on the merits of the majority decision? Which point of view do you favor and why?

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: lnshapiro07@gmail.com.

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