Flush Citizens United
To the editor:
Imagine this examination question in a Constitutional History class in 1968, 100 years after the ratification of the 14th Amendment: Have interpretations and applications of the 14th Amendment had more favorable impact on businesses engaged in commerce or former slaves, and their offspring, over the past 100 years? Update that question to 2010, the year that Citizens United was decided by the U.S. Supreme Court. Might that exam ask, Could Citizens United be decided as it was if not for a series of cases favoring the “citizenship,” “personhood” of businesses and commercerelated organizations as implied by the 14th Amendment?
Section 1 of the 14th Amendment reads: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” Did legislators who wrote and supported that Amendment think that two kinds of citizen/person exist: natural and artificial? One might wonder whether personhood is fundamental to citizenship. Who is a person, or what is a person? A flesh and blood person is a “natural person.” Is the reasoning of the Constitution and related laws such that businesses are also persons, “artificial persons,” created by government rather than parents? Does each kind of person enjoy different rights and suffer different restraints? Note the use of the term “person” in the Amendment and recall that slaves were considered only 3/5 of a person by constitutional definition.
The 14th Amendment was ratified on July 9, 1868, and under the umbrella of Reconstruction guided issues of race, citizenship, and personhood forward. Then, the era of Jim Crow upended that short-lived trend. People were lynched for wanting to vote and for wearing their military uniform too long after returning from war. Over time civil (citizenship, personhood) rights reemerged as a national movement. In 1954, in Brown v. Board of Education, the U.S. Supreme Court affirmed the ideal of achieving equal access to quality education. Martin Luther King, Jr. delivered his “I have a dream” speech in 1963 which was recently recalled by a day of remembrance for voter rights. Arguably, 160 years after the 14th Amendment, human people believe its aspiration has not been fully achieved.
Soon after the 14th Amendment’s ratification, legislatures and courts began treating businesses as “persons.” The 1873 Slaughterhouse Case applied that Amendment’s privileges and immunities clause to business regulation. That trend led to the 2010 Citizens United case which argued that companies’ rights to speak on elections should not be restricted. Today, many argue that companies, artificial citizens, have greater personhood rights than do natural citizens.
Leading to Citizens United, cases incrementally addressed corporate citizenship/personhood rights to participate in democratic self-governance. One was the 1976 Buckley v. Valeo case (political spending is a form of political speech) and then the First National Bank of Boston v. Bellotti (1978) (corporations’ right to purchase political advertising or oppose ballot initiatives). These cases discussed the rights of companies to use corporate money in political processes as the right of natural citizens, the essence of democracy. A 1990 decision, Austin v. Michigan Chamber of Commerce, upheld state law that prohibited unlimited corporate expenditures in elections because such spending could distort electoral processes. In 2010, Citizens United overruled the Austin case. The central issue was not distortion but the fundamental right to spend enormous amounts of money to speak as protected by the First Amendment. Do corporations have a greater right to participate “robustly” in political campaigns than is the case for natural citizens, human persons, whose rights the Declaration of Independence and the U.S. Constitution sought to advance and protect?
And then: In 2017, a U.S. District Court issued an injunction against Washington, D.C.’s Nonwoven Disposable Products Act. The court held that the city could not compel a company to state that its product “should not be flushed” if the company believed it was safe to do so and advertised accordingly. For years, tobacco companies have had to place warnings on products and where they are sold as part of antismoking public-health campaigns. Today, municipalities spend hundreds of millions of dollars to physically remove non-biodegradable “flushable wipes” from sewer systems.
Today, electoral processes may do more to protect the rights of artificial than natural citizens. Should we rethink Abraham Lincoln’s classic line and add the word natural: “government of the people, by the people, for the people”?