Handout C: Documents
Key Question: Assess whether the Supreme Court ruled correctly in Citizens United v. F.E.C. (2010), in light of constitutional principles including republican government, freedom of speech, and property rights.
A. Federalist No. 10 by James Madison (1787)
B. Thomas Jefferson to Edward Carrington (1787)
C. The First Amendment (1791)
D. Dartmouth College v. Woodward (1819)
E. “The Bosses of the Senate,” Joseph Keppler (1889)
F. New Nationalism Speech, Theodore Roosevelt (1910)
G. Buckley v. Valeo (1976)
H. Citizens United Mission Statement (1988)
I. McConnell v. F.E.C. (2003)
J. Citizens United v. F.E.C. (2010), Majority Opinion
K. Citizens United v. F.E.C. (2010), Dissenting Opinion
L. Citizens United v. F.E.C. (2010), Concurring Opinion
M. “Another Dam Breaks,” Matt Wuerker (2010)
Federalist No. 10 by James Madison (1787)
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the
whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the
rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by
controlling its effects.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which
is essential to its existence; the other, by giving to every citizen the same opinions, the same passions,
and the same interests.
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to
faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to
abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish
the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
[Because] the causes of faction cannot be removed… relief is only to be sought in the means of
controlling its effects…If a faction consists of less than a majority, relief is supplied by the republican
principle, which enables the majority to defeat its sinister views by regular vote.
(Italics are Madison’s)
- How does James Madison define a faction?
- What does Madison argue serves as a “check” on the influence various factions may have on society?
- Would the Federalist Papers have been legal under the BCRA?
Thomas Jefferson to Edward Carrington (1787)
I am persuaded myself that the good sense of the people will always be found to be the best army. They may be led astray for a moment, but will soon correct themselves. The people are the only censors of their governors: and even their errors will tend to keep these to the true principles of their institution. To punish these errors too severely would be to suppress the only safeguard of the public liberty…The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them…
If once they become inattentive to the public affairs, you and I, and Congress, and Assemblies, judges and governors shall all become wolves.
- What does Jefferson believe is “the basis of our governments”?
- What does Jefferson believe is “the only safeguard of the public liberty”?
- What does Jefferson seem to believe is a possible disadvantage of press freedom? Why does he find it acceptable?
- What does Jefferson predict will happen if the people become inattentive to public affairs?
The First Amendment (1791)
Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
- Why did the Founders deem speech and assembly so vital to self-government?
- List a variety of ways you see Americans “speak” and “assemble” in political life.
Dartmouth College v. Woodward (1819), Majority Opinion
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs and to hold property…It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented and are in use.
The opinion of the Court, after mature deliberation, is that this is a contract the obligation of which cannot be impaired without violating the Constitution of the United States. This opinion appears to us to be equally supported by reason and by the former decisions of this Court.
- According to this unanimous opinion by Chief Justice John Marshall, what properties does a corporation possess?
- In what actions may a corporation engage?
- How would you explain the reasoning behind the decision that a corporation has an enforceable right to enter into contracts?
“The Bosses of the Senate,” Joseph Keppler (1889)
- How does this cartoon express the concern of “quid pro quo” corruption?
- What is the significance of the closed door with the sign above it in the upper left hand corner of the cartoon?
- Did Madison’s assertion in Federalist No. 10 (Document A)—that the republican principle will serve as a check on the influence of factions—apply in the cartoon’s time period? Does it apply today?
New Nationalism Speech, Theodore Roosevelt (1910)
[O]ur government, National and State, must be freed from the sinister influence or control of special interests. Exactly as the special interests of cotton and slavery threatened our political integrity before the Civil War, so now the great special business interests too often control and corrupt the men and methods of government for their own profit. We must drive the special interests out of politics… [E]very special interest is entitled to justice, but not one is entitled to a vote in Congress, to a voice on the bench, or to representation in any public office. The Constitution guarantees protection to property, and we must make that promise good. But it does not give the right of suffrage to any corporation.
- What does Roosevelt mean by “special interests”?
- Does this concept relate to Madison’s definition of “faction”? If so, how?
Buckley v. Valeo (1976), Majority Opinion
Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation…Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest possible protection to such political expression in order to assure unfettered exchange of ideas for the bringing about of political and social changes desired by the people…A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.
- Restate this excerpt from the Buckley ruling in your own words.
Citizens United Mission Statement (1988)
Citizens United is an organization dedicated to restoring our government to citizens’ control. Through a combination of education, advocacy, and grass roots organization, Citizens United seeks to reassert the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security. Citizens United’s goal is to restore the founding fathers’ vision of a free nation, guided by the honesty, common sense, and good will of its citizens…Citizens United has a variety of different projects that help it uniquely and successfully fulfill its mission. Citizens United is well known for producing high-impact, sometimes controversial, but always fact-based documentaries filled with interviews of experts and leaders in their fields.
- Do you believe James Madison would consider Citizens United a faction? Why or why not?
- Is Citizens United an “assembly” of people seeking to engage in political “speech?” Why or why not?
McConnell v. F.E.C. (2003), Majority Opinion
Because corporations can still fund electioneering communications with PAC money, it is ‘simply wrong’ to view the [BCRA] provision as a ‘complete ban’ on expression…
We have repeatedly sustained legislation aimed at ‘the corrosive effects of immense aggregations of wealth that are accumulated with the help of the corporate form…[T]he government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office…corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates, or…by paying for the ad from a segregated fund [PAC].
- Restate the McConnell opinion in your own words.
- In your opinion, is the McConnell ruling consistent with the ruling in Buckley (Document G) in its interpretation of the First Amendment?
Citizens United v. F.E.C. (2010)
The F.E.C. has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975…[G]iven the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against F.E.C. enforcement must ask a governmental agency for prior permission to speak.
If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech.
At the founding, speech was open, comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowledge…By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.
Factions will necessarily form in our Republic, but the remedy of ‘destroying the liberty’ of some factions is ‘worse than the disease’ [Federalist 10]. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false…
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.
Rapid changes in technology—and the creative dynamic inherent in the concept of free expression — counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources…will provide citizens with significant information about political candidates and issues. Yet, [the BCRA] would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.
- How would you summarize the Court’s interpretation of the First Amendment?
- How would you evaluate the Court’s analysis of Federalist 10?
- The Court reasoned, “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Do you agree? What effect, if any, does this ruling have on the republican principle of the United States government?
Citizens United v. F.E.C. (2010), Dissenting Opinion
[In] a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.
Unlike our colleagues, the Framers had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind…[M]embers of the founding generation held a cautious view of corporate power and a narrow view of corporate rights…[and] they conceptualized speech in individualistic terms. If no prominent Framer bothered to articulate that corporate speech would have lesser status than individual speech, that may well be because the contrary proposition—if not also the very notion of “corporate speech”—was inconceivable.
On numerous occasions we have recognized Congress’s legitimate interest in preventing the money that is spent on elections from exerting an ‘undue influence on an officeholder’s judgment’ and from creating ‘the appearance of such influence.’ Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics…A democracy cannot function effectively when its constituent members believe laws are being bought and sold.
A regulation such as BCRA may affect the way in which individuals disseminate certain messages through the corporate form, but it does not prevent anyone from speaking in his or her own voice.
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
- How does the reasoning in the dissenting opinion differ from that of the Majority (Document J)?
- How would you evaluate the dissenters’ statement, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
Citizens United v. F.E.C. (2010), Concurring Opinion
The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech.
The lack of a textual exception for speech by corporations cannot be explained on the ground that such organizations did not exist or did not speak. To the contrary…both corporations and voluntary associations actively petitioned the Government and expressed their views in newspapers and pamphlets. For example: An antislavery Quaker corporation petitioned the First Congress, distributed pamphlets, and communicated through the press in 1790. The New York Sons of Liberty sent a circular to colonies farther south in 1766. And the Society for the Relief and Instruction of Poor Germans circulated a biweekly paper from 1755 to 1757.
The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.”
- Why does this Justice argue that the original understanding of the First Amendment does not allow for limitations on the speech of associations such as corporations and unions? Do you agree?
“Another Dam Breaks,” Matt Wuerker (2010)
- What does the cartoonist predict will be the effect of the Citizens United ruling?
- What assumptions does the cartoonist seem to make about voters? Are they valid assumptions? Explain.