Citizens United (2010) has happened. McCutcheon was decided recently. We can expect a decision in the Hobby Lobby case before June. We seem to be living through a new civil rights revolution, one in which the Supreme Court continues to aggressively expand the retinue of rights associated with corporate personhood. At the heart of this revolution is a point that I think needs closer examination, a point that exposes an important contrast and potential injustice.
If one begins with the argument that the Court in recent cases like Citizens United evinces a continuum of programmatic commitment, in other words that conservative elected officials increasingly tend to act like conservative judges and justices and vice versa, then we can constructively compare Justice Kennedy’s opinion with recent attempts at the state level (in North Carolina and elsewhere) to limit voting rights. Despite many important surface-level differences, at the deeper level of ideology, we find continuity.
In the Citizens United dissent, Justice Stevens makes this claim:
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 (2).
The last sentence here should interest us most. Kennedy’s majority opinion in Citizens United grants free speech rights to entities – “persons,” if one follows the thread of his argument – that have controlling interests well outside the geopolitical boundaries of the United States. This expansion happens at precisely the same moment as the contraction of voting rights at the level of states: shorter polling hours, more limited early voting days, stricter registration requirements and so forth. It’s not just that a civil rights revolution is happening in service of the interest of corporate “persons,” but that the actual advances of the real civil rights revolution are being rolled back. Corporations don’t need state identification or birth certificates to have their “speech” (i.e. money) protected by the First Amendment; if the Hobby Lobby case is decided in a similar manner, multinational corporations will also have religious “rights” accorded and protected by the Constitution as well. At the same time, citizens who are actual persons find their capacity to “speak” by means of the vote increasingly constricted.
To be sure, as Justice Stevens notes, corporations cannot vote. But as persons, they have interests. They can “speak” in the name of those interests by means of contributions to political causes. According to the argument of the Hobby Lobby lawyers, moreover, they have freedom under the free exercise clause. By means of these freedoms, they can alter the political terrain. As corporate “persons,” moreover, they don’t have to be citizens to enjoy these freedoms. Actual citizen-persons in contrast increasingly have to endure onerous and arbitrary regulations on the one unique capacity they retain. Corporate rights are expanding while the rights of voters are contracting. These are not unrelated developments: they have to be understood as a single – and singularly unjust – agenda.
