“The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws. ”
–Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886).
It was with this simple statement, from the syllabus of the 1886 United States Supreme Court decision in Santa Clara County, the rise of corporate power in America began in earnest. The constitutionality of corporate personhood—legal fictions having equal First Amendment rights as natural persons—is affecting our country in ways few expected 125 years ago.
At the heart of the Supreme Court decision in Citizens United v. Federal Election Commission (2010) is “that prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence.” (Citizens United v. Federal Election Commission, 2010).
The advent of corporations and their influence on the American landscape poses a challenge to a basic principle given to us by our founding fathers—freedom of the press. The First Amendment, in distinguishing between freedoms of the press and speech, recognized the importance of reasoned thought in society. By separating the rights to a free press from a right to free speech, the Constitution values not only the ability to express ideas but also the ability to contemplate those ideas and concepts.
Thomas Jefferson said, “The art of printing secures us against the retro gradation of reason and information.” (Jefferson, letter to Pierre Paganel, 1811). It is contemplation through “the art of printing” that free press is an essential power afforded to the people by the First Amendment.
The foundation of a free press is in the examination of issues as a watchdog over the power of government. Publication is a process in evaluating voices developed through freedom of speech, separating narrowly defined opinions from issues of the greater good.
In the dissent in the 5-4 plurality decision in Citizens United, Justice John Paul Stevens expressed concern over the rise of corporate power.
“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.” (Citizens United v. Federal Election Commission, 2010).
“Under the majority’s view,” Stevens added, “I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” (Citizens United v. Federal Election Commission, 2010, Opinion of Stevens, J. pg.33).
A combination of resources and constitutional protection afforded by the First Amendment allows what amounts to an unfettered flood of corporate money, threatening to tip the balance in the marketplace of ideas. With the lifting of many of the restrictions on corporate spending, a resulting prevalence of challenging ideas will test the public to sift through competing voices. Amplifying those voices will be by the amount of money spent.
However, as of this writing the FEC rules continue to prohibit corporations and labor unions to give directly to candidates. (Federal Election Commission, 2008). What Citizens United accomplishes is allowing corporations and unions to directly advocate (or decry) political candidates and issues. In the world of modern media, the larger pocketbook equates to an amplified voice.
Concerns over the encroaching influence of corporations in the political arena are not new. Abraham Lincoln wrote:
I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. … Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.
–Abraham Lincoln, Nov. 21, 1864 (letter to Col. William F. Elkins)
In the early 20th century, Congress addressed the power corporations would have over the political process. In 1907, with the passage of the Tillman Act [ch.420, 34 Stat. 864 (1907)], Congress “prohibited corporations and national banks from making ‘money contribution[s] in connection with any election to any political office.’ ” (Compiled Statutes of the United States, 1913). The Federal Corrupt Practices Act of 1925 later incorporated the Tillman Act.
The mid 20th century also brought an anti-corporate sentiment with further attempts to limit growing monopolies. In 1938, President Franklin Roosevelt requested $500,000 from Congress to study the growth of corporate power in the United States.
“The liberty of a democracy,” Roosevelt wrote to Congress, “is not safe if the people tolerate the growth of private power where it becomes stronger than the democratic state itself.”
Attempts to reign in corporate influences continued with the Federal Election Campaign Act of 1971creating the Federal Election Commission (FEC), the Michigan Campaign Finance Act of 1976 and into the 21st century with the Bipartisan Campaign Reform Act of 2002 (commonly known as the McCain–Feingold Act). The Supreme Court had upheld each as constitutional, through Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), in the case of the Michigan law and McConnell v. Federal Election Commission, 540 U.S. 93 (2003), in the case of the BCRA.
In a bout of judicial activism, Citizens United overturned most of McConnell and all of Austin. In the ideological mix of the Supreme Court under John Roberts, stare decisis was downplayed. Recent activist decisions of the Roberts court included a Second Amendment protection of individual gun ownership by individuals outside of a militia [District of Columbia v. Heller, 554 U.S. ___ (2008)]. It was the first time the Court applied the Second Amendment to restrictions on individual gun ownership.
After Citizens United, an increasing financial disparity in the political process coupled with a changing economic and social landscape will leave traditional forms of media struggling to survive and educate the public.
Availability of information through newer technology has become pervasive, but some feel what is lost in the rush is thoughtful reflection. Thoughtful analysis supported by facts is one of the foundations of effective journalism, as well as the cornerstone of a free press.
During a speech in 2000, science journalist Laurie Garrett talked of what is missing in the flood of information through the modern media. Writing about health issues, Garrett has won Peabody and Polk awards, as well as the 1996 Pulitzer Prize in Explanatory Journalism.
“What suffers in this atmosphere of immediacy is analysis,” Garrett says. “What suffers in this search for speed is depth. The wealthy world media is becoming increasingly simplistic, superficial and celebrity focused.” (Garrett speech, 2000)
The importance of the press is in the ability to discover and articulate issues important to the workings of democracy. With the Citizens United decision in place, the question remains—what happens now?
Citizens United came at a difficult time for the newspaper industry. Increased political chatter needs a greater diligence from the press. A 2009 study conducted by the Pew Project for Excellence in Journalism shows that the news habits of most people follow a mix of multiple sources.
Asked specifically about their news habits on ‘a typical day,’ the results are striking: 99% of American adults say that on a typical day, they get news from at least one of these media platforms: a local or national print newspaper, a local or national television news broadcast, radio, or the internet. (Edmonds, et al.)
Eric Deggans, media critic for the St. Petersburg Times, views print journalism as the foundation of the way we get our news.
“Forty-eight percent of the top 200 news websites are sponsored by newspapers,” Deggans says. “When CNN did a five-part report on Scientology, it used the St. Petersburg Times as a source.”
“They (newspapers) are trying to get out and find out what isn’t known,” he added. “Who else is going to take the time to develop stories?”
“Newspapers form the bedrock for a mix of information. It is important as a social institution.”
Newspapers are essential to the overall news process. However, traditional news organizations have been shrinking, cutting back staff and operations. According to the U.S. Census Bureau, per capita daily newspaper circulation has dropped 47 percent since 1970. (U.S. Census, 2009). In addition, the Pew Project for Excellence in Journalism reports newspapers have lost 16.9 percent circulation in the past three years and 25.6 percent since 2000.
To remain viable in the information marketplace, newspapers compete with forms of more instantaneous media as well as the 24-hour cable news cycle.
Lucy Morgan, Pulitzer Prize winning political reporter for the St. Petersburg Times, has covered Tallahassee since 1986. She has been witness to the effects of a progressively smaller newspaper presence.
“(Citizens United), unfortunately, is coming at a time when there are fewer of us,” Morgan says. “The Times and the Miami Herald have been working together to get stories in the paper—one combined bureau—to use more manpower than individually.”
“In Tallahassee, there is not much else,” Morgan says. “TV does not exist in the capital and public broadcasting sheds little light. They are restrained, just broadcasting what is on the floor.”
A recent trend in politics has been for special interests organizations to fund organizations that offer information that imitates traditional print news. They present a narrow agenda under the guise of news. It makes the discerning voices of legitimate journalism more valuable.
In an article for the St. Petersburg Times, Morgan talked about the creation of the Sunshine State News Holding LLC. Sunshine State is a privately held organization focusing on news relating to business and politics. Transparency in reporting concerns many; Sunshine representatives declined to name its owners.
“More and more, there are ‘pretend-to-be’ press sponsored by corporations and think-tanks that are more conservative than liberal,” Morgan says.
“Removal of the corporate ban is flooding a process that is already flooded,” she added. “I don’t think there will be an improvement in the quality of people governing until we get money out of the process.”
It has become important that in the changing of the media landscape priorities of good journalism remain, with the ever-increasing number of voices in the political arena bolstered by the First Amendment status of corporations through Citizens United. Survival of print journalism can ensure a level of discourse that comes with the process of responsible newsgathering.
Justice Louis D. Brandeis, in his concurrence to the Supreme Court decision in Whitney v. California, wrote the most eloquent defense of freedom of speech. Those same words can also be applied to a potent, discerning free press in the shadow of Citizens United.
“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”