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 to any person within its jurisdiction the equal protection of the laws.
Amendment XIV
Section 1.
The 14th Amendment, ratified after the Civil War in 1868, extended liberties and rights granted by the Bill of Rights to formerly enslaved people and gives every “person” “equal protection of the laws.”
In 1881, the attorney for Southern Pacific claimed to the Supreme Court that the word “person” rather than “citizens” was used by the Constitution drafters because it had “by long and constant acceptance… been held to embrace artificial persons as well as natural persons.”
[Does this mean avatars will soon get “personhood” rights, based on “deeply rooted in our Nation’s history and tradition”?]
In the 1880s, the “reporter of decisions” was a former president of the Newburgh and New York Railway company, and his grossly inaccurate summary of Southern Pacific stated that the Court had found that “corporations are persons within… the Fourteenth Amendment” as an enumerated right.
It didn’t.
[Should an unenumerated right, not specified in the United States Constitution, but only exists as a result of a known and documented erroneous summary by a Court recorder, meet Justice Alito’s new “deeply rooted in our Nation’s history and tradition” criteria, or should Southern Pacific be overturned because “[t]he Constitution makes no reference… and no such right is implicitly protected by any constitutional provision . . . including the Due Process Clause of the Fourteenth Amendment”?]
In the years that followed, courts across the country, including the Supreme Court, cited the case repeatedly in determining that companies have rights under the Fourteenth Amendment.
Indeed, the phony precedent in Southern Pacific would be employed by a Supreme Court that became famous in the early twentieth century for overturning several economic regulations, including federal child labor laws, zoning laws, and wage-and-hour legislation.
Meanwhile, in cases such as the infamous Plessy v. Ferguson (1896), the same justices declined to interpret the Constitution in a way that protected the rights of African Americans, the true intended beneficiaries of the Fourteenth Amendment.
Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving African American rights and an astounding 312 cases involving corporate rights.
On January 21, 2010, a 5–4 Supreme Court majority sided with Citizens United, saying that corporations and other outside groups can spend unlimited funds on elections.
In Citizens United v. Federal Election Commission, the Supreme Court overruled an earlier decision, Austin v. Michigan State Chamber of Commerce, which allowed corporate limits on independent expenditures.
According to the Court, there was a line of precedent before Austin that prohibited speech limitations based on a speaker’s corporate identity, many based on misreported Southern Pacific ruling, and that Austin was a mistake that permitted corporate discrimination.
The Supreme Court’s decision overturned election spending restrictions that had been in place for more than a century.
Justice Anthony Kennedy argued in the court’s opinion that limiting “independent political spending” from corporations violates the First Amendment‘s right to free speech and discriminates against corporations.
Previously, the court maintained certain spending limits, holding that the government had a role in preventing corruption. However, in Citizens United, a bare majority of the judges found that “independent political spending” did not pose a significant threat of corruption and that the spending would be transparent as long as it was not coordinated with a candidate’s campaign.
As a result, while individual political donations have restrictive annual limits, corporations can spend unlimited amounts on campaign advertising if they are not formally “coordinating” with a candidate or political party.
Later that same year, a federal appeals court decided in Speechnow.org v. FEC — using Citizens United logic — that outside groups could take unlimited contributions from both individual donors and corporations as long as they did not give directly to candidates.
In other words, super PACs are not restricted in terms of how much money they may raise or spend. And while super PACs are required to disclose their donors, those donors can include dark money groups, making the origin of the donations unidentified.
Dark money is election-related spending with an unknown source. Citizens United contributed to a significant increase in this form of spending, which is frequently funneled through nonprofits that are not required to identify their contributors.
And because they can hide the identities of their donors, dark money groups enable foreign countries to conceal their activities from US voters and law enforcement agencies.
This makes US elections more vulnerable to international interference.
The Supreme Court reasoned in Citizen’s United that unrestricted spending by wealthy contributors and corporations would not skew the political process because the public would be able to know who was paying for commercials and “give proper weight to different speakers and messages.”
In reality, voters frequently do not know who is actually behind campaign spending.
During the 2018 election campaign, for example, the top 100 super PAC donors contributed approximately 78% of all super PAC spending, but who those donors were is unknown.
While super PACs are technically prohibited from directly coordinating with candidates, weak coordination rules have frequently proven ineffective.
The formation of super PACs, which empower the wealthiest donors, and the expansion of dark money through shady charities that do not reveal their sources, are two of the most significant results of Citizens United.
A heavily biased electoral system that favors rich donors also perpetuates racial bias and reinforces the racial wealth divide.
In the end, instead of being corrected, an inaccurate summary of a Court decision equating corporations to “persons” mutated to grant artificial entities more rights than human citizens.
Even with Alito’s Roe reasoning that “[t]he Constitution makes no reference… and no such right is implicitly protected by any constitutional provision… including the Due Process Clause of the Fourteenth Amendment,” a Supreme Court reversal or constitutional amendment to undo Citizens United is extremely unlikely.