Here: read the damn thing.
There may have been other Supreme Court decisions that have been more shamefully misrepresented by pundits, activists and demagogues, but I can’t think of one.
The case is back in the news because Hillary Clinton, who will try for a world record in cynical pandering to the least informed voters if she gets the Democratic nomination, told a group of her top fundraisers this week that if she is elected president, her nominees to the Supreme Court must share her belief that the Court’s 2010 Citizens United decision should be overturned, according to people who heard her remarks. In this she is echoing socialist candidate Bernie Sanders, who has said…
“If elected president, I will have a litmus test in terms of my nominee to be a Supreme Court justice. And that nominee will say that we are all going to overturn this disastrous Supreme Court decision on Citizens United because that decision is undermining American democracy. I do not believe that billionaires should be able to buy politicians.”*
The decision does not say that, or hold that, nor are the implications of the decision intended to allow that. Never mind. Bernie’s ideological leftist supporters don’t care what the decision really is about any more than Clinton does. It’s just a rallying cry against “the rich” and “big corporations.” The slogan is a positive litmus test result for ignorance, or, in Bernie’s case, the willingness to deceive. In Hillary’s case, it is just Hillary being Hillary, trying to keep Sanders from flanking her on the left. Do any of those who cheered her fatuous remarks about the decision know what the decision says? I’m dubious. I don’t even think that’s what they were cheering. They were cheering the symbolic use of the case as class warfare rather than the case itself. In fact, Hillary must be banking on nobody paying attention to the case for a very simple reason. Citizens United was about whether that government could ban a documentary that was critical of…Hillary Clinton!
That’s right, a presidential candidate is going to be on record that the films, books and other communications that criticize her should be illegal.
We all know what this is called, right? Government censorship. Speech suppression….in the protection of entrenched government power, This is, in fact, what Citizens United was about. Again, read it. Nor is that the only audacious hypocrisy in Hillary’s sworn opposition to the decision to anyone with the initiative to, again, read it. One of the primary arguments of the Government in favor of SCOTUS upholding the lower court opinion that would have allowed our government to censor that anti-Hillary film was the “need to prevent actual or apparent quid pro quo corruption” by corporate interests. You know—actual or apparent quid pro quo corruption, like paying a potential presidential candidate ridiculously exorbitant fees just to give hour-long speeches—wink-wink, nudge-nudge—“actual or apparent quid pro quo corruption,” like the corporations that put more than 25 million dollars directly into Bill and Hillary Clintons’ pockets from the last third of 2014 to now, once they were certain Hillary was going to be President. Here’s the beauty part, though: overturning Citizens United would do nothing about corporations trying to bribe Hillary like that. It would just make it easier to shut down speech designed to expose her, and others, of course.
Citizens United was about the rights of citizens who unite to do things, one of those things being to speak about public affairs and make their opinions about candidates for office known. Progressives have become increasingly hostile to free speech, and appear willing to curtail it, stifle it and place government restrictions on its content, especially when they have the levers of power in their sensitive, politically correct, censorious hands. Citizens United did not declare that “corporations are people.” It did reaffirm that corporations are protected by the First Amendment, which says that “Congress shall make no law… abridging the freedom of speech,” with no apparent “unless that speech’s development and distribution is paid for by a corporation, union, non-profit organization or association” exception.
Nor does the ruling prohibit limits on corporate contributions to candidates. There are limits, and they are enforced. This is why Hillary and Bill had to devise the clever end-around of a “charitable foundation” to get corporate money, including directly-prohibited foreign corporate money, to support their political ambitions, and to use the “sale” of their speaking expertise at a per se ludicrous six figures per hour to disguise what are in fact quid pro quo political contributions…exactly what the law overturned by the opinion set out, unconstitutionally, to prevent.
Reading the rhetoric of the anti-Citizens United groups will cause anyone who has actually read the decision (and its dissent) run screaming from the room. If you know someone who begins ranting about Citizens United, stop them and ask them to explain the holding. It is like asking someone who says Les Miserables is their favorite musical to explain the plot. They have no clue. Try it. These are the people—ignorant people, people mouthing simple-minded generalizations and talking points that have been carefully scripted by others—that Hillary is pandering to. Here’s the manifesto of a prominent one, from its website:
“On January 21, 2010, with its ruling in Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations are persons, entitled by the U.S. Constitution to buy elections and run our government. Human beings are people; corporations are legal fictions. We, the People of the United States of America, reject the U.S. Supreme Court’s ruling in Citizens United and other related cases, and move to amend our Constitution to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.”
Wrong: the Court did not rule that “corporations are persons.”
Wrong: the Court did not rule that “corporations…are entitled by the U.S. Constitution to buy elections and run our government.”
Wrong: the Court did not and has never ruled that “money is speech.” What it ruled, in a 7-2 vote by a liberal (but obviously not “progressive”) Supreme Court in 1976 was that..
“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”
And this is undeniably true. The dishonest rhetorical device of reducing a complex position to an absurd generalization like “money is speech” in order to use that misleading generalization as a straw man has been the primary methodology of Citizens United opponents since the decision was announced. Now we have reached the point where the loudest opponents of the decision only know the straw man and the misleading rhetoric. They don’t know the decision they are supposedly protesting, because they never read it.
And Hillary Clinton is relying on that confusion and ignorance. (Has she read it? If she has, she’s lying.) Her strategy brilliant in its way, since there is literally no chance that any of these people she is pandering to will ever read the actual decision, could understand it if they did, or if they understood it, would be able to override their biases against the progressive boogeymen like Justice Scalia who conceived it sufficiently to accept reality. As a result, they would be incapable of processing the fact that even the partial dissent to the majority opinion does not dispute the principle that the First Amendment applies to corporations as well as individuals. On that score, the vote was not 5-4, but 12-0. Unanimous.
***
* Aside: I decide not to make this point in the body of the post, but claiming that any single issue will be a “litmus test” for Supreme Court candidates is irresponsible leadership, and pandering of the most cynical sort. The statement, on its face, means that this is the single most important of all issues facing the nation that might confront a Supreme Court justice, and that as long as the candidate was opposed to Citizens United, his or her inclinations about nothing else–civil rights, women’s rights, the environment, health care, tax policy, the war powers, law enforcement, national security, regulatory over-reach, free speech, freedom of religion, abortion, gay marriage…nothing—would matter. That is not only irresponsible, it is stupid beyond measure if true. Of course, it isn’t true. It can’t be true. It is a lie.
______________________
Sources: Scotus Blog, Washington Post
Ethics Alarms 
Jack, I wanted to take up your advice and “read the damn thing,” but the link is to something else entirely.
ARRRGH!!! http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/
I have NO idea how that happened!!!
But thanks for getting that fix in QUICK. God, I hate that…makes me want to hurl myself out my third story office window like Father Damien at the end of The Exorcist…
Now, there’s a reaction beyond ‘kaboom’ — You can animate your picture so your head rotates on your shoulders. No, not a video, no Jack, don’t …. no…turn back befo….noooooo
The key point being that (spoiler) Pazuzu was not responsible for that window jump?
Hey! You know your Exorcist!
Pazuzu keeps popping up in these discussions. I’m beginning to fear that he’s infesting Jack’s website and spreading mischief in his wake.
Hillary’s threats about a litmus test for SCOTUS nominees (and they ARE threats) are aimed precisely at a dumbed down electorate who haven’t read these things for themselves and likely couldn’t evaluate it if they tried. After all, that’s what they continually elect demagogues for… to do their thinking for them while promising them free goodies. But the threat is real, nonetheless. As president, Hillary would undoubtedly appoint the most liberal, Constitution-hating jurists to the Court that he could dredge out of an Ivy League law school.
Top link goes to racist police emails bruh
Sigh – I’ll use the refresh button next time
I’ll repeat my reply to Charley, but with more emphasis: ARRRRRRRRRGGGGGHHHHHH!
I’m sorry. It’s fixed.
That is not the worst part of the litmus test, by the way.
The worst part is that having a litmus test for a Supreme Court judge means that their ruling has already been made on a given case or cases <strong?BEFORE they have seen one piece of evidence, read one brief, or heard one argument.
Talk about corrupting the Supreme Court and engendering mistrust… this is the sort of thing that will do it.
Yes, and that’s another mess. Unfortunately, Ginsberg and Scalia, among others, have contributed to the problem, to their shame.
I’m a little confused here.
You’re certainly right that Citizens United did not de novo make that claim that “corporations are people.” That claim had been partially made and upheld previously. As ScotusBlog put it:
“It has been understood, for decades, that corporations are “persons” under the Constitution. And nothing the Supreme Court said [Thursday] undermined that notion. If anything, the decision in Citizens United v. Federal Election Commission conferred new dignity on corporate “persons,” treating them — under the First Amendment free-speech clause — as the equal of human beings.”
It seems to me you’re right to decry people over-simplifying the case to “Supreme court says corporations are people!” (Though I can’t help but note in passing that’s a direct quote from Mitt Romney on the campaign trail).
But isn’t the significance of Citizens United that, as ScotusBlog puts it, the decision “conferred new dignity on corporate ‘persons’,” i.e. that it extended the person-like rights of corporations?
The decision itself (and thanks for providing it, I agree people should read it) cites a prior conflict on the issue between the Austin decision and the Buckley-Bellotti decisions, and overrules the Austin decision. The effect is to extend the rights of corporations to include more rights of persons than had previously been allowed to corporations. It’s not the case that nothing happened here.
As Scotusblog points out, corporations still can’t run for public office, and presumably you can’t marry a corporation, so there are still some differences. But isn’t it clear that corporations gained one more person-like right here than they previously had? And isn’t that the gist of the decision?
And if so, why is it so crazy to decry the already-obvious results – lots more money being contributed recently by corporations to electoral campaigns?
Two things seem clear to me:
1. Corporations can now legally contribute more money more easily than they could before to elections, and
2. It’s already had a demonstrable impact on elections. (In my opinion, a negative one, but I suppose people can debate that).
“It has been understood, for decades, that corporations are “persons” under the Constitution. And nothing the Supreme Court said [Thursday] undermined that notion. If anything, the decision in Citizens United v. Federal Election Commission conferred new dignity on corporate “persons,” treating them — under the First Amendment free-speech clause — as the equal of human beings.”
“Persons” is in quotes for a reason. “Persons” means legal entities that are in certain legal contexts the equivalent of actual individuals. No place, ever, has SCOTUS said “corporations are PEOPLE.” That’s absurd, that’s a straw man, and that’s what opponents of the ruling keep saying. Stop it. This the law, and choices of words matter.
“But isn’t the significance of Citizens United that, as ScotusBlog puts it, the decision “conferred new dignity on corporate ‘persons’,” i.e. that it extended the person-like rights of corporations?”
No. Corporations have the right of freedom of speech, within certain limits. This simply fixed an anomalous exception that could not be justified under strict scrutiny.
The gist of the decision is that you can’t ban books, movies and position papers because the people creating them were funded by a corporation. The decision did not change the right to regulate corporate contributions directly to candidates at all. That’s why the Clintons had to develop their contribution-laundering schemes.
“lots more money being contributed recently by corporations to electoral campaigns?”
That’s not accurate. If I explain why Hillary is a liar and a crook, I am not “contributing to her opponent’s campaign,” am I? How is a corporate-made documentary any different? How can you distinguish ABC’s right to make a pro-Hillary bio-pic and run it in prime time and Citizens United making an anti-Hillary documentary? The ABC movie is “just entertainment”? Who believes that? Certainly not you.
Because of the internet, corporate and union advantages over the rest of us, while still significant, are less decisive than ever. There are lots of voices: the characterization of voters as zombified by advocacy ads is absurd, and cynical. Eliminate the advocacy ads, just have the Senate leader speak slanderous lies about candidates because it works, right?
Yup, the right to free speech is abused, and a lot of free speech has unfortunate results. More speech, please. That was the holding of Citizens United: From Scotus blog:
That’s more speech. And if you read the dissent, Stevens’ description of corporations as having no opinions supports the majority. It isn’t the corporations—the “persons”—speaking, is it? It’s people, living, breathing ones, using corporations to get their speech heard.
The Horror.
First, let’s note that Romney is as famous as Hillary for claiming “corporations are people.” But, let’s agree, they’re both wrong.
Second, the fact that this particular case involved a documentary about Hillary isn’t particularly more noteworthy than the fact that other cases were “about” a Brown, or a Roe, or a Wade. Seems to me the substance of the issue is a lot more important than the name or personage of the litigant; do you think this case is really just about the parties? Is it wrong to see something much broader here?
Third, you flatly say it’s “not accurate” that “lots more money is being contributed recently by corporations.” Here’s a quote from the Washington Post’s ScotusReporter on the McCutcheon decision last year that “Strikes Down Limits on Federal Campaign Contributions:”
“On its face, the ruling seems far more limited than Citizens United, which has dramatically increased spending on campaigns and spawned a new wave of political organizations funded by wealthy individuals.”
I don’t have the data at hand, but that reporting is conistent with what my strong impression is – that Citizens definitely unleashed a lot more corporate spending on elections. Do you know something I don’t?
Finally, you say “Because of the internet, corporate and union advantages over the rest of us, while still significant, are less decisive than ever.”
I don’t know how we’d resolve disagreement over this point, but I’d suggest that so far, in the battles between social media and the more conventional outlets, Facebook and Twitter are pretty ineffective up against serious money deployed on things like Fox News, congressional campaigns, and the American Legislative Exchange Council. There’s a reason the Kochs aren’t firing up Instagram and Pinterest to pursue their goals.
You get three ARRRRGHS for this one:
ARRRRGH #1: Romney did not say “corporations are people” in the way you are representing it, or the way the CU crowd mean it. he meanst, and was very clear, corporations are made up of people. If someone says “cities are people,” they do not mean it literally. Romney was speaking figuratively, Hillary uses the term as if it is intended literally.
[Sub-ARRRRRGH!: What does Romney have to do with any of this? Is he running for President? Did he make defdnding CU a litmus test for SCOTUS? Why is what Romney said or didn’t say relevant? I bet he didn’t read the opinion either]
ARRRRGH #2 You said “lots more money being contributed recently by corporations to electoral campaigns.” Not true.
“Citizens definitely unleashed a lot more corporate spending on elections.” Maybe true. Spending money on elections is not contributing money to campaigns.
ARRRRGH #3 “I don’t know how we’d resolve disagreement over this point, but I’d suggest that so far, in the battles between social media and the more conventional outlets, Facebook and Twitter are pretty ineffective up against serious money deployed on things like Fox News, congressional campaigns, and the American Legislative Exchange Council.”
Slamdunk, Charles. Once, people like me had NO forum at all. Now literally hundreds of thousands of voices are out there, challenging, debunking, pointing out misinformation. Meanwhile, far, far fewer voters are limited to three liberal news networks and their local newspapers. I said that corporations’ propaganda is less decisive than ever, and that is self-evidently true. Once there was NO alternative in mass communication, now there is a lot. Yes, it’s significant. But it is less influential than ever. It has to be.
I didn’t believe that there were still any intelligent people who actually believed that Romney meant “corporations are people” in anything other than a legal sense. Are there still Big Bird memes going around too?
Something something about lack of proper ammunition in a war of ideas…
He also said that he has tiny women trapped in binders.
Yeah, but who doesn’t?
“I didn’t believe that there were still any intelligent people who actually believed that Romney meant “corporations are people” in anything other than a legal sense.”
“I didn’t believe that there were still any intelligent people who actually believed that Hilary meant “corporations are not people” in anything other than a legal sense.”
May I suggest both of them know perfectly well what the decision means, as does everyone in this thread. Nobody believes it literally, and nobody believes it unreservedly. This is all just rhetorical posturing.
But the point is that Hillary wants her devotees to believe that Romney actually believes that corporations are actually people. Of course she doesn’t believe that herself, and she knows he doesn’t. She’s not stupid. Just a tremendous liar.
When Hillary says “corporations aren’t people” as if she is addressing someone’s actual opinion, and Obama burns Romney in a debate by slyly suggesting that Romney has more money than he does…you have to assume that they just believe that their target audience is a bunch of sheep.
Isaac, to your point, I think there’s enough demonizing to go around on both sides. Both sides treat their target audience like sheep. Neither Romney (nor Bush–either one–nor Ted Cruz nor Rubio) believe it any more than Hillary does. (Maybe Santorum believes it – that I could imagine…)
No, really, Charles, its a false equivalency. Romney said, and meant, that corporations, like unions, associations and clubs ARE in fact people, groups of people, and not some abstract, soulless entity. And that’s true. Hillary is saying, “Isn’t this ridiculous! The Supreme Court in Citizens United says that corporations are living, breathing human beings! See how stupid that opinion is?” Romney’s comment was absolutely honest. Hillary’s is a deliberate con for the gullible. This is not one of the areas where “they’re both just as bad” flies.
“Romney’s comment was absolutely honest. Hillary’s is a deliberate con for the gullible.”
I accept that Romney’s statement was honest (horribly phrased, but honest, and I get his intent, same as you).Corporations “are” people in the sense that people own them and taxes flow through them. Point noted.
But seriously – can you point to one human being “gullible” enough to believe in the ontological equivalence between a human being and a corporate entity? Who out there truly believes you can marry a corporation? Have sex with a corporation? That a corporation can have a pet, or send its children to school?
Nobody. Nobody belies in unicorns either, so I don’t find it credible that some people are “gullible” enough to believe that others believe in them.
When Romney says, “Corporations are people, my friend – absolutely they are,” and when the left carries placards saying “Corporations are not people,” they’re sparring over equally stupid phrase-mongering, fighting for the rights to some short-hand.
Analogies may be helpful here:
1. Tastes Great! Less Filling!
2. Right to Life! Freedom of Choice!
3. Have you stopped beating your wife yet?
Move along, folks, there’s no real argument here.
Charles!!! Have you read the anti-CU blogs? They actually say, “This crazy opinion says that corporations are people! Isn’t that ridiculous?” It is simply factually untrue that nobody is taking that concept literally—it is as I said…it is being used as a straw man to ignore the legal status and the reasons for it by people too uneducated to comprehend it.
The bank, presumably a corporation, raised and sent a young Citizen named Kane to school…
“Move along, folks, there’s no real argument here.”TM Democratic Party.
What Citizens United IS about, it seems to me, is the extension of CERTAIN rights previously granted only to protein-based sentient beings. Corporations already had certain of those rights, and didn’t have others. The column of “yes they’re similar” got enriched by one right, and the column of “no they’re not” got depleted by one. That’s all.
But the item itself is relevant. It extends the power of free speech in ways whose practical effects are – I think, undeniably – to increase the amount of spending on elections, and in ways unlinked to actual voters.
(Which by the way, is another item in the ‘they’re not people’ column – corporations can’t vote, at least qua corporations. At least not yet.)
Charles, that’s nonsense, as I said before. Corporations are not computers spitting out their own thoughts. This is human speech, paid for by people pooling resources. Where in the First Amendment does it limit what political speech is protected? The previous cases were unconstitutional themselves, and pro-censorship.
The last sentence is beneath you. There is no threat of the legal entity of corporations or unions casting votes…could not happen,and feeds into ignorant left-wing hysteria to even suggest in jest.
The point of the opinion is not that corporations are being extended rights previously granted only to sentient beings, it is that sentient beings do not have to sacrifice rights which have always been granted to them in order to organize for a common purpose.
Very well stated.
“rights which have always been granted to them.”
Not.
If that were true, Citizens United wouldn’t have been required to overthrow the previous view of the law, which restricted precisely that right. And by the narrowest of margins, at that.
Without delving too far into the opinion:
“Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm’n, 540 U. S. 93, 203–209 (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Austin had held that political speech may be banned based on the speaker’s corporate identity.
In this case we are asked to reconsider Austin and, in effect, McConnell. It has been noted that “Austin was a significant departure from ancient First Amendment principles,” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 490 (2007) (WRTL) (Scalia, J., concurring in part and concurring in judgment). We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. We turn to the case now before us.”
As you can see, Citizens United was a recognition that the previous state of the law was a “significant departure from ancient First Amendment principles.” It returned the state of the law to the recognition that organization for a common purpose i.e. as a corporation does not require a person to give up First Amendment rights.
“It has been noted that “Austin was a significant departure from ancient First Amendment principles,” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 490 (2007) (WRTL) (Scalia, J., concurring in part and concurring in judgment)”
This would be persuasive were it not for the fact that the “it has been noted” clause refers to Scalia himself, one of the majority, writing in a previous case. It comes close to the Pope declaring an ecclesiastical argument to be correct because of papal infallibility.
When the majority has to quote itself to make a point, the Supreme Court starts to resemble an echo chamber governing by raw numbers, not by the rule of law–politicization of the court.
I’ve already cited three other sources who declare what the law “is” about, and it’s not about restoring stolen first amendment rights. Jack doesn’t care for the NY Times spokesperson; ok, they’re liberal, I confess. But what about Wikipedia? What about ScotusBlog?
Your citations don’t contradict what I said. All of your quotations state rights that individuals previously had (and have always had) under the First Amendment. The only thing that the decision did was overturn a previous (and relatively recent) decision which allowed the government to restrict those First Amendment rights merely because of the organization of individuals for a common purpose as a corporation.
See also NYT v. Sullivan.
Ryan, thanks to you and Jack and a few others, this has been the most educational EthicsAlarm post – for me – in some time.
I’m not a lawyer or legal historian, but something about casting the Citizens United case as a regaining of the pristine-until-1990-Austin case rights of corporations to first amendment speech strikes me as very self-serving and short-memoried.
I don’t recall PACs roaming the land before Citizens United. I don’t recall the massive amounts of money that are presently being spent by corporations as being anything near their present levels in the 80s, the 70s, or the 60s.
In fact, if you go back to 1971, the Federal Election Campaign Act (under Nixon, by the way) imposed campaign finance limits and created the FEC.
Before that, the 1947 Taft-Hartley Act banned corporations from even making independent expenditures in federal elections.
And before that, the Smith-Connally Act of 1943 added unions to the list of entities which could not donate directly to federal candidates; for corporations, it was already illegal.
And when did that happen? Not with Austin in 1990, in 1907. It came from Teddy Roosevelt’s fighting vigorously for the 1907 Tillman Act, which made it illegal for corporations to donate to federal candidates. It was followed up in 1010 with the Foreign Corrupt Practices Act, which built on the corporate prohibition to reduce
So – far from “correcting” some 25-year-old ‘error’ in interpretation of free speech, Citizens United appears in context to be a significant walking back of over-a-century-old legislation from back at the turn of the last Century – in response to 19th century abuses of power on elections.
It’s one for thing for Scalia to quote himself (though in the third person? ick) and overthrow a 25-year old case; it’s quite another to pretend that the laws in question don’t go back to correcting errors from the 19th century.
Back to this being the most educational post yet for me: the one thing I’ve learned looking through this discussion is that, while all law is ultimately politics at some level, election and campaign finance law come far closer to being purely politics than most other realms.
For most of the 20th century, the liberal forces were winning, restricting free speech largely to individuals, and keeping out powerful organizations (corporations and unions in particular). In the last 15 years, the winds have shifted, and the first amendment is being interpreted to permit more latitude on behalf of corporate entities to engage, more directly, in political activity.
Somebody tell me I’m wrong, but the whole thing makes me a little cynical. There are limits to any amendment (e.g. you can’t shout ‘fire’ in a crowded theater). There are always going to be political debates about the interpretation of an amendment. But it seems to me that wrapping this one in the robes of “free speech” and calling it a return to the unsullied days of our forefathers’ free-spending ways just ignores a century-plus of hands-on political debate about the proper role of organizations in politics.
There is no revealed truth to be found in the First Amendment; we’re going to have to work at it politically to get it sorted out. Or so it seems to me.
Doh.
I mis-typed “I don’t recall PACs roaming the land before Citizens United.”
I should have typed
I don’t recall PACs roaming the land before Austin.”
I think it should be obvious that pre-TV, pre-internet, pre-blog, pre-mass communications laws and decisions are automatically due for rethinking. A lot of decisions from that era have fallen by the wayside, and with good reason. And CU did not change the limits on direct corporate contributions.
I don’t know where anyone got the idea that how much someone spends on speech or the identity of the speech’s origins or the timing of the speech or its political content limits the degree to which such speech is accorded protection. To the extent that the censorious sneaked such provisions by Congress and the courts, shame on them, and shame on the hypocritical news media, which are all corporations, for encouraging it or passively allowing it. Why wouldn’t political parties b similarly restricted? They were bad laws and anti-free speech laws. I’m sorry that progressives don’t like speech when they don’t like the speakers, but I’m dedicated to helping them get over it. Organizations will be much more effective than I can be explaining to the public how corrupt and cynical and dishonest Hillary is, and the news media can’t be trusted to do it. Thank goodness someone can.
No Charles, thank you, for this has given me a reason to put off studying for the California bar exam (almost) guilt-free.
There are many times when particular methods of exercising our rights will seem unfair or wrong. When wealthy corporations spend money on political speech is one of those times. Their ability to spend enormous sums on getting their message out seems unfair because the average person can do so little comparatively to get their own opinions heard. People who think this is unfair frame Citizens United as standing for the strange proposition that “money is speech,” whereas what it really does is acknowledge the obvious truth that, for most people, money is the only realistic means to speech’s end. Therefore, limiting (or prohibiting) expenditures on political speech is necessarily a limit (or prohibition) on the speech itself.
It is true that there are limits to our rights under the First Amendment, one of the most frequently misused as authority being Holmes’ decision in Schenck, where he stated that even the First Amendment does not protect *falsely* shouting fire in a movie theater (I use stars because I don’t know how to italicize). Indeed the 1A may not allow for that, because the ensuing panic due to the false statement could cause substantial injury to the moviegoers. The 1A similarly does not protect fighting words due to their tendency to cause violence, incitement due to its tendency to cause crime, or defamation due to the combination of its falsity and the harm it causes to the victim. But what is the justification for limiting corporate expenditures on political speech?
Is it that the corporations can spend more money, and can therefore have a disproportionate effect on elections? Lena Dunham, Tom Hanks, Robert Downey Junior, Sean Penn, and all other celebrities and political pundits and journalists have a megaphone compared to the average person’s whisper. In spite of this obvious discrepancy in influence, we do not limit the air time they can dedicate to political commentary, nor do we tell them they can make a limited number of appearances at campaign fundraisers, and we shouldn’t.
Is it because the 1A only protects individuals? Let’s say I’m a deeply-indebted recent law school graduate who wants to try to get my message out that several Supreme Court decisions over the last ten years have been repeatedly misstated by laypeople and lawyers alike. The way I want to do this is by making a documentary. Unfortunately, I’m a garbage narrator, so I want to hire an actor to narrate my documentary. I also don’t know how to direct, write a movie, be a cameraman, etc, so I want to hire someone capable of doing each of these things. When I start interviewing candidates, I realize each of them wants to be paid, and like I said, I’m broke. So I take on a partner, who has some money. Should I lose my right to make this documentary now, because I’m in a partnership? Unfortunately, we also have to find experts in the field to interview, and we can’t afford it. So we take on another partner. Have I lost my rights yet? How about when I take on ten more partners, who each want to help fund my venture? Is it when I take on 50 partners? Or is it just the corporate formalities that for some reason require me to forfeit the rights that my government is supposed to protect? As far as I’m concerned, there is no reasonable justification for requiring someone to give up their rights simply because they decided to do it through an organization.
You are right, the debate around this topic frequently seems political. This is, of course, because one party tends to survive on anti-wealthy and anti-corporate rhetoric, even though direct campaign funding by corporations (which was not at issue in Citizens United) is usually roughly similar between the parties. This is where you should direct your attention. The reason for the similarity is because direct contributions are substantially more effective than the type at issue in Citizens United at “incur[ring] political debts from legislators who are aided by the contributions”. However, as long as legislators are allowed to raise campaign funds (which they always will be) and as long as legislators are allowed and encouraged to intervene in the economy to the degree they do, this type of rent-seeking will occur. Yet frequently those who most vehemently oppose corporate expenditures are those who believe the government is the solution to all economic ills, and are also the most willing to turn a blind eye to obvious corrupt practices by their favored politicians.
Comment of the Day
Ryan, glad to have contributed to your procrastinatory delinquency. And thanks for raising the bar once again; much to think about in what you’ve written, thanks.
One question though: basically, where does one draw the line? At present we are still somewhere in the broad middle of the political spectrum of possibilities. As I understand it, there are still a few Chinese walls thrown up preventing mainlining of money directly from the income statements of the Koch Brothers and Facebook to the pockets of their favorite candidates.
But why? Unless free speech is unlimited, including by access to money, then where’s the line to be drawn?
I don’t see it as a partisan battle (though clearly some on both sides do), but rather as pernicious per se. How much is too much?
CNN reports that the cost of winning a seat in the House of Representatives has gone up 344% since just 1986 – and that’s in constant dollars. And that’s nothing compared to the impact of outside groups, which – correct me if you think I’m wrong – were enabled by CU. Outside groups spent $457 million on Senate and House races in 2012, compared to $9 million in 1986. That’s an insane 5,000% percent growth rate.
And this is 100 years AFTER Mark Twain joked that the only native criminal class was Congress.
Are we fine with that? Should we be? Suppose the cost of a House seat went up another 100% from $1.6M now to $3.2M? Suppose it goes to $10M? Suppose outside group spending grows another 10,000%?
Is there a line that is “too much?”
The issue is less about relative share of the money, but whether money at some point just drowns out everything in a steady drone of mud-slinging simplification all-the-time.
Your thoughts?
“CNN reports that the cost of winning a seat in the House of Representatives has gone up 344% since just 1986 – and that’s in constant dollars. And that’s nothing compared to the impact of outside groups, which – correct me if you think I’m wrong – were enabled by CU.” This is wrong.
“What we have said also shows the invalidity of other arguments made by the Government. For the most part relinquishing the antidistortion rationale, the Government falls back on the argument that corporate political speech can be banned in order to prevent corruption or its appearance. In Buckley, the Court found this interest “sufficiently important” to allow limits on contributions but did not extend that reasoning to expenditure limits. 424 U. S., at 25. When Buckley examined an expenditure ban, it found “that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures.” Id., at 45.
With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo,” id., at 26, and that “the scope of such pernicious practices can never be reliably ascertained,” id., at 27. The practices Buckley noted would be covered by bribery laws, see, e.g., 18 U. S. C. §201, if a quid pro quo arrangement were proved. See Buckley, supra, at 27, and n. 28 (citing Buckley v. Valeo, 519 F. 2d 821, 839–840, and nn. 36–38 (CADC 1975) (en banc) (per curiam)). The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. MCFL, 479 U. S., at 260; NCPAC, 470 U. S., at 500; Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982) (NRWC). The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here.
“The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Buckley, 424 U. S., at 47; see ibid. (independent expenditures have a “substantially diminished potential for abuse”). Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question. Indeed, 26 States do not restrict independent expenditures by for-profit corporations. The Government does not claim that these expenditures have corrupted the political process in those States. See Supp. Brief for Appellee 18, n. 3; Supp. Brief for Chamber of Commerce of the United States of America as Amicus Curiae 8–9, n. 5.”
The government is still allowed to (see cited Buckley and NRWC cases), and does, limit direct contributions to candidates. These were not at issue in CU.
“The government is still allowed to (see cited Buckley and NRWC cases), and does, limit direct contributions to candidates. These were not at issue in CU.”
I get it. My question remains: is there a point too far?
And to my original original point: both you and Jack have both done a terrific job of arguing the free speech aspect of this case, to my great edification. Thank you.
But you are both still insisting that your view is “right,” or so it seems to me; that the decision “is about” mainly and primarily free speech. And this I think is clearly only half the story.
I would simply like to give evidence of a great number of reasonable other people who DO NOT SEE CU as being mainly about free speech, but rather as being largely about campaign finance.
I already mentioned Linda Greenhouse of the Times; and Wikipedia; and and ScotusBlog.
Let me add two more.
There is Adam Cohen, senior writer of Time Magazine, who wrote: “The real headline of the term was the court’s decision earlier this year [CU] giving corporations and unions sweeping new rights to spend money to elect candidates to office.”
Then there’s Roger Parloff, Fortune Magazine Senior Editor and author of Fortune’s Legal Pad column: “The U.S. Supreme Court’s stunning campaign-finance ruling last month — finding that the “government may not suppress political speech on the basis of the speaker’s corporate identity” — triggered passionate reactions from critics…First, it sets precedents in constitutional law regarding when unelected judges in our democracy can strike down the laws passed by elected legislatures, and when it’s appropriate for the court to overrule the decisions of earlier courts…Second, the ruling has enormous impact on campaign finance law, where it frees corporations (and presumably unions) to use their vast financial resources to influence elections.”
In fairness, the Wall Street Journal agrees with you: “the Supreme Court issued a landmark decision supporting free political speech by overturning some of Congress’s more intrusive limits on election spending.” (Though if you consider Linda Greenhouse to be biased, I’ll double-down on the Wall Street Journal).
I find the most balanced to be – not for the first time – The Economist. Here’s how they put it:
“[CU] held that since the first amendment tells Congress to make no law abridging the freedom of speech, previous legislation that barred companies, unions and other groups from paying directly for political advertisements during election campaigns was unconstitutional.”
Having gone through all this edifying (and I’m not being sarcastic in the least) discussion, this one nails it for me. There are many parts to this elephant; some people are going to insist they’re “shocked” that other people do not see only the First Amendment issues: others can’t believe that issue is even relevant, that it’s “obviously” a political power play regarding electoral finance.
It’s both. But the one thing I keep rediscovering – it’s a mistake to view this as either “purely” legal or as purely political. This is a social issue that won’t be solved by dueling citations; nor by simplistic placards in marches.
It’s a real issue, political in the fullest and best sense of the word, to be played out in several social fora, including the law and in politics.
I recognize that many see, or at least say they see, this case as being mainly about campaign finance. Many of them didn’t read, misunderstood, or misstated the case. You ask about lines, and the Court did draw one for you. The line is between direct contributions to campaigns and independently paying to try to “influence elections.” Influencing elections and political matters is, in fact, the most crucial purpose of free speech (at least as cited by legal positivists; those who believe free speech requires a justification). The line is drawn here:
If I donate one dollar to a candidate, my donation can be subject to reasonable limits by the government. If I pay one dollar to by a pen and paper with which I can write why the same candidate can be elected, my dollar is not subject to regulation by the government. This holds true whether I do so on my own or through a corporation I started. I, and many of those who understand the CU decision, believe is a very reasonable place to draw the line.
Ryan, some of those folks are reasonably well read, well thought of, and seasoned observers of the legal scene. I’ll leave it to you whether the likes of those I cited “didn’t read, misunderstood or misstated the case.”
That said, I think your statement is as concise and substantive as any I’ve seen on the distinction between paying for speech and direct paying to a candidate.
Still, that being said, I’m left wondering in turn if that isn’t a distinction without a difference. You don’t need to directly buy a man to own him – you can do it by just getting him elected. And the coin of the electoral realm is media.
Thanks again.
So, could media reporting on candidates have been restricted the same way the documentary at issue in Citizens United was restricted?
“If I pay one dollar to BUY a pen and paper with which I can write why the same candidate SHOULD be elected, my dollar is not subject to regulation by the government.” Ugh.
The New York Times also misrepresented this decision.
Why Didn’t Nixon Think of This Argument During the Pentagon Papers Case?
The comments are on Reason are great, and nail the absurdity of the Crazy Left argument against allowing political speech through corporations. I’m sure that if the wish-list litmus tests could be applied, the Hillary/Bernie Court would allow unions to use dues to make whatever political case they wanted, but corporations’ political speech would be curtailed….because what seems pretty obvious is that progressives believe that corporate speech is especially dangerous because it tends to oppose their anti-capitalist policies. Thus this means chilling speech is justified.
The more I read this, the more consternated I get about what you appear to be saying. You say:
“Citizens United WAS ABOUT whether that government could ban a documentary that was critical of…Hillary Clinton! That’s right, a presidential candidate is going to be on record that the films, books and other communications that criticize her should be illegal. We all know what this is called, right? Government censorship.”
Let me quote at least three other definitive statements of what Citizens United was “about:”
First from Wikipedia:
“Citizens United v. Federal Election Commission, No. 08-205, 558 U.S. 310 (2010), is a U.S. constitutional law case dealing with the regulation of campaign spending by organizations. The United States Supreme Court held that the First Amendment prohibited the government from restricting independent political expenditures by a nonprofit corporation. The principles articulated by the Supreme Court in the case have also been extended to for-profit corporations, labor unions and other associations.” (No mention of banning documentaries as significant).
Second from Linda Greenhouse, the NYT’s Supreme Court reporter:
“…the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.” (No mention of banning documentaries as being significant).
Third from ScotusBlog:
“The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections.” (No mention of banning documentaries as significant)
Citizens United was not “about” banning a documentary any more than Brown v Board of Ed was “about” admitting a particular child to a particular school. Like most major Supreme Court cases, it was “about” a much bigger principle – the rights of corporations to spend on elections, NOT about “censorship.”
You’re of course entitled to any rant you want about Hillary Clinton, but it seems to me a misrepresentation of Citizens United to claim it was “about” banning a documentary, or “about” censorship. At the very least, your view of what’s important to emphasize is distinctly in the minority.
It was about banning a documentary. That’s why it was called “Citizens United”—they produced the documentary. More broadly, the case was about banning political speech—as in the documentary—because it was paid for by a corporation. Since it suppresses speech to ban the documentary based on who made it and how it was paid for, the law doing so was struck down. The principle that arise out of this rather obvious affirmation of free speech was “just because speech is paid for by a corporation, that doesn’t mean it isn’t protected.”
Is your problem that banning speech is more palatable in the abstract, when it’s described as “spending money to support or denounce individual candidates in elections”? Because the practical effect of those expenditures is speech—movies, documentaries, books. Solicitor General Elena Kagan answered the “Could the government ban book based on content?” question YES, Charles. That’s the heart of the issue. This is no rant. You have to deal with the fact that whatever else the law would do, it required banning, censoring speech based on content. It’s speech that Democrats think they would fare better without…too damn bad. It’s speech, and not only that, political speech, the most protected of all. Framing the opinion as being about who spends money and what they say with what it buys is deceitful. (Linda Greenhouse is often deceitful.)
I’ve always thought the irony of the left’s angst about CU can be summed up in your point above: For the left, corporations BAD, unions good, corporations bad, super PACs good. Koch Bros. BAD, Tom Steyer and George Soros, good.
That is predictable. The alarming thing is how many supposed legitimate commentators misrepresent the opinion by sliding over the core right and American value involved—free speech—directly to “corporations bad.” I was shocked at Stevens’ dissent..as he has proved beyond questioning since retiring, he’s an ideologue on the left, and willing to sacrifice free speech to grease the wheels for progressive policies without vigorous debate. It was equally shocking that three other SCOTUS justices signed on to a position that would allow the government to ban books. I think that’s creeping very close to the abyss.
And I don’t believe protecting the First Amendment is a conservative position, just because only one side of the political spectrum seems to be willing to sacrifice it to achieve its ends. The corruption of liberalism that it has reached this point is a separate issue, but attention must be paid.
Amusingly enough though, in practice, Corporations generally favor the Left in donations…and the Left’s “corporations BAD” message is just pandering to a populist sentiment. Believe me, the Left & the Established corporations benefit (to the detriment of the little guy) when Government & Big Business are in bed together.
Holy Crap.
And you can barely discuss such blatant manipulation without looking like a conspiracy nut.
I wonder if Hillary might join the Bilderberg Group just for future political cover…
It is really so intellectually dishonest. Tom Toles, the disgracefully deceitful Washington Post political cartoonist (he makes Herblock seem unbiased), had a cartoon last week charcterizing the opinion as “Money is speech.” Democrats argue that money is access to college, money fights hunger, money buys safety,…it’s not that they don’t apply the principle that without money, vital necessities of life are impossible. Nobody would argue seriously that efforts to help the poor by getting them resources to buy food is absurd because “you can’t eat money!” Yet that is exactly what the censorious progtressives and their lackey allies in the media are arguing when they say that limiting expenditures on speech isn’t restricting speech.
So this one has TWO intentionally misleading slogans: “Money is speech” and “Corporations are people.” I’m truly shocked to read anyone who is capable of objective thought defending it.