Justice Kennedy, who wrote the majority opinion, has proved to be a powerful advocate of individual liberty (including in cases establishing the right to private homosexual conduct and the rights of Guantánamo detainees). But he remains staunchly conservative in his understanding of the role of corporations as bulwarks againstgovernment. His central argument in the Citizens United case was that the right to speak freely cannot vary based on the identity of the speaker. An individual who speaks is maintaining his independence vis-à-vis the state; and so, by extension, is a corporation, because corporations are nothing more than collections of individuals organized to achieve some greater end. According to this view, civil society is made up not just of civic groups like the N.A.A.C.P. or the N.R.A., but also of for-profit corporations. To deny them the right to speak freely is to allow government to pick and choose which kinds of speech it wants to allow and hence to distort the free marketplace of ideas.

Kennedy has a point: corporate speech often shades into the realm of the expressive, whether the message is creative or political. Thus a progressive approach to corporate speech cannot simply try to demarcate different kinds of expression. The progressive argument must go deeper, to the institutional reality of the effects that corporate money can have on our entire democratic system, elections included. Supreme Court doctrine has historically tried to capture a version of this concern by asserting that the government has a legitimate interest in “anticorruption” — the idea being that money from corporations can produce the appearance of a quid pro quo from elected officials. The court has also sometimes spoken of an “antidistortion” value — the concern that corporations will have a disproportionate effect on elections by providing more money than individuals can. Justice Souter, quoted by Justice Stevens in his Citizens United dissent, referred to these interests collectively as demonstrating a concern for “democratic integrity” — a concern that may in some circumstances outweigh the constitutional value of unfettered speech.

Image Credit... Alan Kitching

But these polite, high-sounding terms do not go far enough. Couched in abstract language, they reflect the liberals’ discomfort with stating bluntly that money talks. A truly progressive jurisprudence would go further in its legal reasoning, acknowledging that the for-profit corporation, man’s most-advanced technology for making and concentrating wealth, creates unique risks for the structure of democratic government. It is true that corporate political speech is still speech, as Justice Kennedy and the A.C.L.U. alike have insisted. But that speech serves different ends than individual speech. Organized to use all lawful means to generate profit, corporations have the means and opportunity to try to capture the operation of government to serve this objective. Campaign-spending lets them do it directly. That is why Congress must be able to limit the effects of corporate speech during elections. It is a matter of defending democracy against the risk that business interests will come to dominate government decision-making — an interest that derives from the constitutional commitment to republican government.

V.DUE PROCESS

The renewed battle lines between constitutional progressives and conservatives are not restricted to the First Amendment: the constitutional debate about business regulation is also becoming increasingly salient. This term, for example, the Supreme Court took up the constitutionality of the Public Company Accounting Oversight Board, created by the Sarbanes-Oxley Act to review accounting practices. Similar challenges will certainly be brought to the new financial regulations proposed by the Obama administration. The council of regulators that is supposed to identify risk and deal with emergencies will be challenged as unconstitutional, as will the design of the consumer-credit-protection entity that is expected to be housed somewhere in the Federal Reserve.

Wherever possible, conservatives claim that legislation aimed at regulating business actually infringes on the constitutional rights of individuals. Indeed, the very authority of the government to resolve the affairs of large financial corporations — the heart of the new financial-reform legislation — will very likely be challenged as a violation of the due-process rights of those firms and their shareholders. Thus will the aim to stymie structural change be framed in terms of individual freedom. It will be up to progressives to explain why this view is mistaken — and why limiting corporate rights is justified.

The grave difficulty that must be met by a new progressive constitutional approach can so far be sensed most readily not in court cases but in the government’s actions and justifications connected with the bailout of financial institutions. The now-canonical A.I.G. bailout serves as a useful example. In saving the insurance giant, the government (under the Bush administration) famously paid A.I.G. counterparties, including Goldman Sachs, 100 cents on the dollar for insurance contracts that they had taken out with the firm. Critics wondered loudly why the government didn’t renegotiate the debts and demand that the counterparties settle at a discount. Then, while in control of A.I.G. (this time under the Obama administration), the government’s managers allowed A.I.G. to pay out the bonuses it owed employees under their employment contracts — again inviting the criticism that a private acquirer would have renegotiated and paid out less, or nothing.