Different people have different descriptions of what actually went down in the Citizens United case. For some, the screechier among us, it confirms the fascism of American politics as corporate plutocrats are able to buy elections and continued page 94. For others it’s hey, great, our side won.
What the Supreme Court actually decided was that groups of people have certain of the rights of individuals. Like this:
The Lincoln Project “will not be intimidated by empty bluster”, a lawyer for the group wrote late on Saturday, in response to a threat from an attorney for Ivanka Trump and Jared Kushner over two billboards put up in Times Square.
“Sue if you must,” Matthew Sanderson said.
The New York City billboards show the president’s daughter and her husband, both senior White House advisers, displaying apparent indifference to public suffering under Covid-19.
Kushner is shown next to the quote “[New Yorkers] are going to suffer and that’s their problem”, above a line of body bags. Trump is shown gesturing, with a smile, to statistics for how many New Yorkers and Americans as a whole have died.
The Lincoln Project is some group of people. It is, leaving the precise legalese aside for a moment, a corporate body not an individual. Certain rights accrue to a corporate body, certain do not. The question is, obviously enough, which?
The Lincoln Project does not have a vote – there have been elections when corporate bodies did, it’s even possible that City of London still does for local elections. Note, again, that “corporate” here does not mean, necessarily and in my strange usage, “limited company”. Just a grouping of people combined for some reason or other.
The point of having such groupings of people recognised in the law is so that they can be granted such rights. For example, you cannot sue a cat in court. Not a person, courts only deal with persons. But we rather like being able to sue, say, Exxon, so we need some form of making Exxon, a grouping of people, into a person that has rights and also obligations in the courts.
So, we have the concept of a “legal person” and a “natural person”. A natural person is a human bean who has rights just because they’re a peep. A legal person is some cobbled together idea so that the whatever it is gains some, but not all, the rights of a natural person. The most obvious one being legal personality and thus access to and suffering under the systems of the law.
Which then brings us back to well, which rights? The legal person doesn’t gain a vote. OK. It does get to hire lawyers and file writs. OK. Now, about those other rights that might be available. Access to an abortion? Not really relevant but no. Freedom from unreasonable search and seizure? I don’t actually know. How about free speech?
Which is where Citizens United comes in. Yes says the Supreme Court. Legal persons do gain that free speech as natural persons. Well, OK, not exactly the same but roughly so.
At which point the Lincoln Project can, in an election period, put up what are quite obviously distinctly political posters even though it’s a grouping of people, a grouping without the vote.
Oh, and so can other groupings of people who make up a legal person. Like, say, Exxon.
What Citizens United was not about is whether corporates can buy elections. Rather, which rights of a natural person also accrue to a legal person? And yes, the Lincoln Project is a legal person just as Exxon is and so, therefore, they have a similar ability to avail themselves of whatever those rights that accrue to legal persons are.