(Note: Hadley Arkes provided us with these comments after arriving late in Washington last night and just hearing of the supreme court decision on Citizens United v. Federal Election Commission . We’ll continue to take up this issue in the coming week.)
Justice Thomas is magnificently right in making the case that the whole scheme of requiring the public disclosure of contributions is something that deserves to be struck down. One could argue in this way: The right to engage in legitimate associations should entail the right to engage in those associations with confidentiality, for the disclosure could make a person vulnerable to pressures that have, as their purpose, intimidating him from engaging in projects that are quite legitimate.
The best example comes from the old case in which the Court had struck down the move to require teachers in Alabama to disclose their associations. The concern was that membership in the NAACP could threaten ones job, especially when teachers did not know they were hired for the next year until they received their contract. My own reading of NAACP v. Alabama (1958) was that this decision had to rest with the individual himself, for no one knew as keenly as he did the pressures and threats that were directed against him.
Clarence Thomas invokes here the sharpest examples from our own day: the threats directed at supporters of Proposition 8, threats that caused people to be fired, and small businesses to suffer boycotts. There is real danger in the air there, and yet to take it seriously is to call into question the whole scheme of disclosure that is central and necessary to any policy to restrict the funding of political campaigns.
On the main opinion, it is curious that the dissenters do not appreciate this axiomatic point: that a corporation is simply another form of an association of human persons. The question was raised in the first case eliciting a set of opinions from the Court (Chisholm v. Georgia, 1793 ) as to how a State could be obliged to keep its contracts. The power of the State was necessary to the enforcement of contracts, and so if a State were challenged, who would have the authority to pronounce a judgment and enforce it against a State?
But Justice James Wilson took the problem from this angle: On what ground could a state be obliged to honor its promises and contracts? On the same ground that a person can be obliged to honor his promise, for he has made people vulnerable to the prospect that the promise will be kept. But if that holds true for the ordinary human person, why would it not hold true for an organization that is simply an association of human persons? It made the most profound difference that one understood the State, in America, as an association of free persons, who have a claim to be ruled only with their consent. In England, as Wilson noted, the law began with the notion of a Sovereign issuing commands. But in America, he said, the law would begin with another principle, very different in its nature and operations . . . laws derived from the pure source of equality and justice must be founded on the consent of those, whose obedience they require.
The Sovereign, when traced to his source, must be found in the man. It must be found, that is, in the human person, the only being who could weigh the moral grounds of justifying laws and tendering his consent.
Hadley Arkes, a member of the editorial advisory board of First Things , is the Ney Professor of Jurisprudence at Amherst College.