MASSACHUSETTS VOTERS FACE three ballot questions this November. Though Question 2 has received the least attention, it has the potential to affect every citizen of the Commonwealth—and, perhaps, the nation. Question 2 proposes a volunteer commission be convened to consider amending the U.S. Constitution to overturn the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission.
The 5-4 decision in Citizens United held that the First Amendment prohibits certain regulations of political expenditures—in particular, restrictions on independent expenditures by for- and non-profit corporations, labor unions, and other associations. Writing for the majority, Justice Anthony M. Kennedy reasoned that the First Amendment protects associations of citizens – like corporations – just as much as it does individuals when they engage in political speech.
Perhaps no recent Supreme Court opinion has been as unpopular as Citizens United. A 2010 poll revealed that 80 percent of respondents opposed the decision, with 65 percent saying they strongly opposed it. A 2017 poll showed that, even seven years on, a clear majority of Americans continued to oppose the decision.
Question 2 is part of a national effort to overturn Citizens United through a federal constitutional amendment. Its adoption would authorize the creation of a 15-member commission whose members would work together to research and report on such matters as the impact of political spending in Massachusetts, limitations on the Commonwealth’s authority to regulate corporations, proposals for constitutional amendments to overturn Citizens United, and recommendations for advancing any proposed amendment.
Amending the Constitution is a quixotic enterprise. Just 27 amendments have been adopted in more than two centuries, reflecting an amendment process that is, by design, complicated and difficult. Even if Question 2 is approved in November, it makes an amendment overturning Citizens United only incrementally more likely.
Despite the difficulty posed by the amendment process – and the fact the Commission represents just a small step toward an eventual amendment – opponents of Question 2 decry any effort to overturn Citizens United, which they see as a victory for free speech.
To be fair, there is a plausible First Amendment rationale for the holding in Citizens United. One value served by the freedom of speech is the promotion of diverse views and voices in the marketplace of ideas. On this theory, more corporate and associational speech should be welcomed. There are two problems with this position. One is that the goal of information-maximization is arguably undermined when certain well-funded speakers can flood the marketplace with their particular views.
The other problem is that information-maximization is not the only value promoted by the First Amendment. A right to free expression also enables individuals to engage in self-actualization – to form their own beliefs and opinions as members of a political community. And this is not a value that has any relevance to non-corporeal entities that exist only as a matter of law. Indeed, the fundamental flaw with Citizens United is its suggestion that the products of thought – the ideas that end up in the marketplace – are somehow disconnected from their source. Under this reasoning, it makes no difference whether individuals, corporate entities, or virtual assistants, such as Amazon’s Alexa, are speaking – for the purpose of the First Amendment, it is all the same.
But that cannot be right. Humans — including the managers, shareholders, and employees who make up corporations — each possess an inherent dignity not possessed by mere legal entities, and the belief that the contributions of these entities to public discourse are essentially the same as expression by individuals demeans individuals. In this light, what Question 2 really proposes is an exploration, in a public way, of the extent to which the logic of Citizens United undercuts the importance of citizenship itself. Which may explain why support for the proposal is high: In an age in which corporations loom large in our lives, this is an issue that many believe warrants immediate attention.
Lawrence Friedman teaches constitutional law at New England Law | Boston and is the co-author of The Oxford Commentary on the Massachusetts State Constitution.