An analysis of the recent Supreme Court ruling

[tvashtarkatena]

The following analysis is a worthwhile read for anyone interested in this topic. It refutes several erroneous perceptions posted in threads on the subject, and makes several thought provoking points not presented.

 

 

 

Understanding the Citizens United Ruling

 

By Ira Glasser, former ACLU executive director (1978 – 2001)

 

The recent decision by the U.S. Supreme Court in the case of Citizens United v. Federal Election Commission has been greeted with screaming dismay by most liberals. Many of them mistake the decision for doing things it did not do: for example, one hyperbolic letter to The New York Times asserted that the decision overturned "the century-old ban on corporate contributions to political campaigns." It did no such thing. Corporations are still banned from contributing to a candidate or to a candidate's campaign. The assertion was wrong, and the Times was remiss in publishing such a factually false claim.

More seriously, in his State of the Union, President Obama said that the Court's decision "reversed a century of law." It did no such thing. Congress did enact a law about a hundred years ago that barred direct corporate contributions to election campaigns. But that law was not involved in the Citizens United case, and remains unaffected by it.

Now such stalwart liberals as Sen. John Kerry in the Senate and Rep. John Conyers in the House, normally reliable supporters of freedom of speech, have proposed a constitutional amendment to "fix" the First Amendment in order to bar corporations from exercising freedom of speech. What corporations exactly? They don't say. Who shall decide which corporations may speak, and which may not? They don't say that either.

These liberals, and others like them, who denounced the decision have failed to appreciate what a great ruling it was for the First Amendment, and what a huge victory it was for freedom of speech and against government censorship. Yes, censorship.

So what was this case actually about, and what did the decision actually do? Herewith some observations:

1. The issue at stake in the case was whether, consistent with the First Amendment, the government could criminalize speech that criticized a public official who was also a candidate for elective office, 60 days before a general election and 30 days before a primary. One would think that it was precisely during an election campaign that the right to criticize or defend an elected official was most important. But not according to the campaign finance "reformers." They have actually been trying to stop such speech for four decades, and not just speech by the sort of big, bad corporations you may have in mind.

In a similar case involving a similar issue back in 1972, the ACLU, which by the way is also a corporation, was prevented from taking out an ad in The New York Times criticizing then-President Nixon for his opposition to school busing for integration, and had to go to court to vindicate its right to free speech. The campaign finance "reformers" wanted to prohibit such speech because Nixon was also a candidate for re-election, and the ACLU's speech criticizing him might affect the election in ways the reformers thought was unfair! (I am not making this up.) The law was struck down when the ACLU sued, but it came back again in other forms. In 1984, the ACLU was cited and investigated by the Federal Election Commission for public statements it made criticizing President Reagan for what it considered his violations of civil liberties. That of course was what the ACLU existed to do. But because this criticism occurred during the 1984 re-election campaign, the FEC moved to bar it because, it claimed, such criticism was the functional equivalent of supporting a candidate!! And that was prohibited by campaign finance law.

In these and many other cases over decades, not-for-profit cause groups of all kinds were repeatedly subjected to curbs on precisely the kind of speech the First Amendment was designed to protect. In the current case that has caused all the commotion, the victim was a not-for-profit group called Citizens United that wanted to distribute a film it had made criticizing Hillary Clinton and questioning her fitness for office. No good, said the law, you can't criticize her while she's running for office. Why? Because Citizens United was incorporated. So is the ACLU and so is pretty much every other cause organization. Should Planned Parenthood, for example, or NARAL Pro-Choice America be banned from criticizing Sarah Palin during a future campaign for office? That was precisely the question raised by the Citizens United case. Should the fact that such activist citizens' organizations are incorporated allow the government to bar their speech, especially when it matters most? That is the question the Court was asked to answer, and it answered correctly: such organizations' freedom of speech is protected by the First Amendment. Why liberals should be unhappy about that, or willing to tolerate the censorship of their own speech that would have resulted from a contrary decision is a mystery.

2. The law that barred corporations from spending money to speak critically or supportively of public officials during an election campaign also barred labor unions, even though labor unions aren't incorporated. Why? Because in 1947, the Taft-Hartley Act, a law hostile to organized labor and a law most liberals opposed, decided to include labor unions within the prohibition to "balance" the prohibition against corporate speech.. The precedent of barring corporate speech thus became an excuse for barring the speech of labor unions. Liberals who think that such limits, if allowed, will not apply to them but only to the corporations they hate are deluding themselves. As all our history shows, the first target of government censorship is never the last. It is for that reason that the First Amendment says "Congress shall make no law... abridging the freedom of speech" but Congress did, and in a series of campaign finance laws over the past 40 years, Congress has done so over and over again.

3. The case also had nothing to do with limits on campaign contributions to a candidate, or with the prohibition of corporate contributions to a candidate; those remain intact and were not at play in this case. Rather the case had to do with what is called independent expenditures on speech. This means speech engaged in by an organization in its own behalf, and not in coordination with any candidate. The statute in question in effect instituted a government licensing system for independent speech that mentioned a candidate by name in an electronic broadcast communication 60/30 days before an election, effectively granting the government the authority to silence such speech during that time, including speech by labor unions, the ACLU, Citizens United and any other similar organization.

4. The campaign finance "reformers" argue that the government ought to be given the power to ration speech because democracy requires an equitable balance of speech in order to be fair. And it is certainly true that inequities of speech flow from inequities of wealth. That has always been the case, and it is true for all speech, not just campaign speech. When I grew up, the names of the governors of New York were Lehman, Roosevelt, Dewey, Harriman and Rockefeller. All but Dewey were fabulously wealthy, a determinative fact in their political prominence and election. For that matter, Thomas Jefferson wasn't exactly a man of the working class. Money isn't speech, but how much money one has always determines how much speech one has. It's like travel: money isn't travel, but $100 won't get you very far, and those who have $25,000 can travel more, and more freely. If I told you you had a right to travel, but could spend no more than $100, wouldn't you think your right to travel was being limited? It's the same with speech. Most if not all of you reading this have never had as much speech as, say, The New York Times or George Soros or Nelson Rockefeller or George Bush or, as we recently discovered in my city, Mayor Bloomberg. The inequities of speech that flow from the inequities of wealth are certainly a big and distorting problem for a democracy, and have always been so, and not just during elections. No one knows how to remedy that, short of fundamental re-distributions of wealth. But I'll tell you what isn't a remedy: granting the government the power to decide who should speak, and how much speech is enough. Nothing but disaster flows from that approach, and that was what was at stake in this case.

5. The campaign finance "reformers" claim that corporate wealth is uniquely different, and that the protections of free speech afforded to the rest of us ought not, in the name of equity, be afforded to corporations. But any effort to single out "corporations" as properly subject to such a licensing system as this case represented is both over- and under-inclusive: if regulating the unevenness of speech by regulating the unevenness of wealth is the goal, then why include small business corporations (repair shops, small grocery stores, gasoline stations, etc.) but not Warren Buffet or George Soros, and many other individuals whose personal wealth, unincorporated, dwarfs that of most corporations? And what about the ACLU and the NAACP and Planned Parenthood and The Sierra Club, etc., etc., all of which are corporations that engage in the sort of speech prohibited by the statute struck down in Citizens United?

And what about The New York Times, and CBS and other media corporations, which also are corporate (NBC is owned by General Electric) and which by their coverage and their editorials endorsing and opposing candidates spend money all the time for purposes that were generally prohibited by the statute? Consider: The Times endorses Candidate A in an editorial, or Fox News devotes its entire coverage to promoting or tearing down a candidate, and that is constitutionally protected, but if Citizens United or the Sierra Club or the NAACP or Planned Parenthood wants to buy time for an ad to reply, supporting a different candidate or even just mentioning a candidate by name in an ad that doesn't expressly support or oppose the candidate, they commit a crime? Where in the First Amendment does it say that such corporations have fewer speech rights than a "media corporation?" And what exactly is a "media corporation?" General Electric or Westinghouse are barred from political speech, but if they buy NBC or ABC (which they both did), they become a "media corporation" that escapes the ban? Why should we be allowing the government to decide who may speak by making such distinctions? Yet the Times, a corporate entity that spends money all the time to criticize or praise candidates, and to support or oppose them, blathers on hypocritically about how if other corporations have exactly the same right as they do, it means the end of democracy. Do we want the government--the government??!!-- to be deciding which corporations can speak and which not? The Times? Yes. The ACLU or Citizens United? Sorry, no. Wasn't this precisely the power denied to Congress under the First Amendment? One of the great features of the Court's decision is that it cleared away all of these unsupportable distinctions, and took away the government's power to decide whose speech it would permit and whose it would not.

6. Congress and state legislatures may still, under the terms of this decision, require corporations to disclose their funding of other groups' speech, especially for very large gifts, thereby turning such gifts into a political issue. More fundamentally, if Congress were interested in creating fairness and equity in campaign speech, it could move in the direction of public financing. The problem is, however, that such public financing is unlikely to be either adequate or equitable. For one thing, Congress, consisting nearly entirely of Democrats and Republicans, is unlikely to want to fund third-party candidates, yet why shouldn't their speech be as entitled to be heard as the speech of the two major party candidates?

For another, Congress is highly unlikely to provide adequate funds to finance effective challenges to themselves. Campaign finance reforms have from the beginning been designed to protect incumbents. For example, research shows that what matters in campaign speech is more the floor of spending than the ceiling. That is, if $2 million is an adequate amount to get your message out, and if an insurgent candidate for Congress has $2 million to spend and the incumbent spends $4 million, then that doesn't normally affect the outcome, assuming $2 million is enough. But if the insurgent only has $400,000, the incumbent virtually always wins. The incumbent has name recognition, which the insurgent usually doesn't; the incumbent has the franking privilege with which to reach voters, while the insurgent has to raise money in amounts limited by law to do equal mailings; the incumbent can call a press conference or hold a hearing and generate publicity that is regarded as news, while the insurgent has to spend money raised in small amounts to generate equal coverage.

The requirement to raise campaign dollars in small amounts discriminates against insurgent candidates and favors incumbents. Raising lots of contributions in small amounts requires name recognition and the support of many people, which insurgents usually don't have. In 1968, Gene McCarthy began his anti-war campaign against incumbent President Lyndon Johnson with only about 2% name recognition in New Hampshire. He had three major donors who gave him seven figures each--huge gifts in 1968-- when he challenged LBJ in the New Hampshire primary; those gifts would have constituted a crime today, and pretty much since the early seventies. Without that handful of large gifts, McCarthy would have had little chance to get his message out effectively against an incumbent. With those gifts, he came so close to beating Johnson that Johnson quit the race for re-election. Legislators know all this research; that is why they pass the "reforms" they do, which limit large contributions, require challengers to raise money in small amounts from large numbers of people, and to the extent that they provide public financing, do so in insufficiently low amounts and then bar candidates who take such inadequate public financing from raising any additional money. Campaign finance laws passed by incumbents assure the insufficiency of insurgent candidacies. Incumbency has greatly increased for several reasons, but its rise since these campaign finance "reforms" became popular about 40 years ago is a substantial one.

When I testified in Congress over the years against such campaign finance restrictions on First Amendment grounds, I proposed many public finance alternatives: free air time for candidates who get on the ballot; the franking privilege for challenger candidates as well as incumbents, and direct funding for all Congressional candidates in adequate amounts. No one, not any Democrat, not any Republican, not any advocate of campaign equity, supported such suggestions. Why? Because they were not about to fund effective challenges to themselves.

So aside from the profound First Amendment problems created by all these laws, they have generally suppressed insurgent candidates, advantaged incumbents and increased inequity in election campaigns.

Liberals and Democrats have been the chief offenders in this scenario, favoring equity in the abstract but never seeing how the particular reforms they advocated made the problems they wished to remedy worse, and never seeing that giving the government the authority to regulate speech was not a good thing. Maybe now this result, which has steamed up liberals and Democrats, may at last shift their attention to the kind of public financing that equitably provides money for more speech instead of pretending to create equity by granting the government the authority to restrict speech. We shall see. If they do move in this direction, citizens should remember that the floor is more important than the ceiling: the amounts provided have to be adequate; if they aren't, fair campaigns will not follow; and if they are, then restrictions on what can be raised in addition, with disclosure of the source (for large amounts), will be unnecessary. This is not a new proposal; but maybe now it can gain some traction.

[Fairweather]

Good post. I'm gonna pass it on to my current law prof who, like you, noted that he was withholding judgment. (In the unlikely event he hasn't already seen it.)

[tvashtarkatena]

As is so often the case, the devil's in the details, not the headlines. I haven't read the Supreme Court decision yet, but I'm sure it contains more surprises. They often bare little resemblance to the media stories that cover them.

 

Warning: This was originally published in the Huffingtonpost....

[Fairweather]

He used to clerk for the 9th Circuit. Like I said...

[tvashtarkatena]

You should also talk to him about the 9th circuit's recent landmark ruling that found that our criminal justice system is racially biased. It'll be interesting to see what lawmakers do with that shot across their bow.

[Hugh Conway]

Here you go douchebags:

http://www.fantasyscotus.net/

[Fairweather]

You should also talk to him about the 9th circuit's recent landmark ruling that found that our criminal justice system is racially biased. It'll be interesting to see what lawmakers do with that shot across their bow.

 

I'm not sure if their ruling includes re enfranchisement of felons in prison, or only felons who have served their time. I would support the later, but would vehemently oppose the former. I haven't read the ruling--I only know what I've read second hand.

[ivan]

good post pat, though finding myself mid-sip re-reading some lines more than twice i've no doubt absorbed it all

 

the masses, and no doubt my own, initial reaction to the decision was certainly more an expression of the frustration at the inequities of wealth than the exact legal minutiae of the case - christ, what normal human being can parse a scotus decision? the gut feeling is that corporations own our asses, and so anything that even looks to involve the subject makes us antsy

 

so it's all going to be okay then?

[j_b]

It still doesn't change the fact that corporate personhood, therefore speech, is fiction despite over a century of supreme court attempts to give an edge to corporatists. It is a matter of free speech alright but it is that of making sure corporations don't swamp out people's speech. Freedom of the press is specifically accounted for in the constitution, whereas corporations aren't even mentioned even though they already existed at the time of writing, so I am not sure what the yammering is about. One dollar, one vote is clearly anti-democratic and this ruling is taking us further in that direction.

[prole]

Whoop-whoop! The little red PR damage-control wagon is on the scene! What a bunch of gymnastical smokescreening basecovering bullshit. Love the limp conclusion the best: "well, our support for this decision will just push the liberals to work harder for public campaign finance laws." What a joke. Well, at least the ACLU can depend on FW's checks now.

[tvashtarkatena]

It would be more interesting to hear exactly what aspect of the analysis or decision you don't agree with. For example, do you not agree that new campaign finance laws, such as those suggested in the piece, are needed? Which specific proposals mentioned do you find fault with?

 

More importantly, do you support banning the anti-Hilary ad put out by a non-profit group and those like it: the central issue of this case?

 

As an aside, this case had nothing to do with corporate 'personhood', as is so often mis-stated, including in this thread.

Edited February 5, 2010 by tvashtarkatena

[j_b]

It has everything to do with the legal fiction of corporate personhood.

[j_b]

The corporate personhood debate refers to the controversy (primarily in the United States) over the question of what subset of rights afforded under the law to natural persons should also be afforded to corporations as legal persons.

 

In the United States, corporations were recognized as having rights to contract, and to have those contracts honored the same as contracts entered into by natural persons, in Dartmouth College v. Woodward. Corporations were recognized as persons for purposes of the 14th Amendment in an 1886 Supreme Court Case, Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394. Some critics of corporate personhood, such as author Thom Hartmann in his book "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights," claim that this was an intentional misinterpretation of the case inserted into the Court record by reporter J.C. Bancroft Davis. [1] Bancroft Davis had previously served as president of Newburgh and New York Railway Co.

 

Proponents of corporate personhood believe that corporations, as representatives of their shareholders, were intended by the founders and framers to enjoy many, if not all, of the same rights as natural persons, for example, the right against self-incrimination, right to privacy and the right to lobby the government.

 

http://en.wikipedia.org/wiki/Corporate_personhood_debate

[Coldfinger]

It has everything to do with the legal fiction of corporate personhood.

 

True in part.

 

More to do with the so called "strict interpretation" of the Constitution (e.g. Scalia), but the big problem is that "speech" as it is practiced nowadays in no way resembles 1780 America. Not that we are really any more or less honest or dishonest now than back then, but politicos are often committing slander and libel solely because it is either "free speech" or falls under the "public figure" exception to common law libel and slander.

 

Seems we won't solve this one until we somehow draw a clear line between contributions and bribery.

[Stonehead]

Should Planned Parenthood, for example, or NARAL Pro-Choice America be banned from criticizing Sarah Palin during a future campaign for office? That was precisely the question raised by the Citizens United case.

 

Not interested in getting into a pissing match here, but doesn't it seem ironic that the Court has affirmed the 1st amendment rights of corporations such as Planned Parenthood yet does not recognize any such nascent rights to the unborn?

 

I'm certain there are some legal doctrines that have bearing on this of which I'm not aware (as a layperson). One couldn't compare this to the Dred Scott decision or to the recent decision by the Supreme Court in upholding a lower court ruling ( SCOTUS Petition Asks Justices to Review Torture Abuse Case of British Former Guantánamo Detainees a Second Time

[ivan]

It has everything to do with the legal fiction of corporate personhood.

did you read the analysis?

 

yeah, my gut tells me microsoft and gm and ge, etc. shouldn't be able to buy whoever they want w/ their speech, but the same gut tells me its b.s. to gag planned parenthood, the aclu, etc. b/c those are corps that are specifically established to magnify the speech of private, concerned citizens

 

perhaps there is a way to distinguish between mega-business corps and non-profit political corps - but then, w/ everythign, there's a thousand loopholes...

[Coldfinger]

Should Planned Parenthood, for example, or NARAL Pro-Choice America be banned from criticizing Sarah Palin during a future campaign for office? That was precisely the question raised by the Citizens United case.

 

Not interested in getting into a pissing match here, but doesn't it seem ironic that the Court has affirmed the 1st amendment rights of corporations such as Planned Parenthood yet does not recognize any such nascent rights to the unborn?

 

I'm certain there are some legal doctrines that have bearing on this of which I'm not aware (as a layperson). One couldn't compare this to the Dred Scott decision or to the recent decision by the Supreme Court in upholding a lower court ruling ( SCOTUS Petition Asks Justices to Review Torture Abuse Case of British Former Guantánamo Detainees a Second Time

 

Well.... There is that infant who somehow advocates for X investment co (the talking baby ads) so I guess with ultrasound communication the unborn could become day trading shareholders or even form a corporation or even become corporate officers, and in that case the SC has recognized their nascent rights, otherwise I guess they're SOL as far as the holding of the case we're talking about.

[Stonehead]

SOL. Yeah, just pointing out the irony that the inception of rights is contingent on a legal definition.

[Coldfinger]

Yeah kinda like the irony of the phrase "bible study"--my favorite oxymoron. But a hammer always sees everything as a nail, so keep on pounding it!

[Stonehead]

So is the idea of jury nullification just an outdated concept?

[ivan]

at any rate, is this really a suprising opinion coming from the aclu? seems there're pretty much famous for pissing EVERYBODY off w/ their devotion to the bill o' rights - for chris'sakes, they were on the side of the illinios nazis!

[Jim]

The case also had nothing to do with limits on campaign contributions to a candidate, or with the prohibition of corporate contributions to a candidate; those remain intact and were not at play in this case. Rather the case had to do with what is called independent expenditures on speech. This means speech engaged in by an organization in its own behalf, and not in coordination with any candidate.

 

I call BS on this statement, which is disingenuous at best. Sure there still are direct contribution limits but, duh, they will be overwhelmed by the indirect limits. The ruling specifically releases corporations from having to form PACs as middlemen and the financing constraints around PACs. They can now funnel money directly into whatever PR program they wish, with no limits. Does the author really think it's reasonable to equate the financial power of Exxon with even the largest Unions in the country? I don't think so. Yes, there are some issues that needed parsing out but there have always been limits on free speech, particularly in recognizing the unbalanced power of large corporations. The Supreme 5 sidestepped the relative narrow question in front of them to take on an issue that was not it play. And Congress devoted to real campaign finance reform? I'll take my chances that the Easter Bunny is real first.

 

Say you're a congressman from a small rural district and you've been making noise about strong bank reform and making some headway. What's to prevent Goldman or whoever from throwing money at a local Swiftboat process? So now that congressman will be more reluctant to take on controversial issues because he doesn't want to disturb the firms with deep pockets. In addition, the 24 states that have campaign finance laws will be affected.

[Stefan]

Huh? I do not have a political mindset. So can someone please explain the difference to me:

 

Corporations can make contributions to a candidate--but are limited.

 

Corporations can not make campaign contributions.

 

If you make contributions to a candidate aren't you making campaing contributions? Is this what is called soft money?

[prole]

It would be more interesting to hear exactly what aspect of the analysis or decision you don't agree with. For example, do you not agree that new campaign finance laws, such as those suggested in the piece, are needed? Which specific proposals mentioned do you find fault with?

 

More importantly, do you support banning the anti-Hilary ad put out by a non-profit group and those like it: the central issue of this case?

 

As an aside, this case had nothing to do with corporate 'personhood', as is so often mis-stated, including in this thread.

 

As has already been stated, this decision has everything to do with the corporate personhood and "money is speech" assumptions that underpin it. One could argue the finer legalities of slavery till the cows come home as long as one is willing to accept the premise that a human being can be considered property. Once one accepts the faulty foundation, all the other pieces fall logically into place. Once the ACLU is bound to the "corporations are people/money is speech" millstone, its support of the decision is practically a no-brainer, they're philosophically locked in.

 

I absolutely do agree with the piece in its call to campaign finance reforms and public funding of campaigns. That's not really the point and including it at the end of a piece in favor of the decision is patently absurd as in reality such reforms are even less likely post-Court decision than they were before it. The idea that "ceilings aren't important" in a milieu where one dollar equals one decibel is again absurd. I don't have a problem with a transparent, accountable, democratically elected body placing limits on the amount of money a corporation can spend to place ads in newspapers or television commercials. That goes for the ILWU or for Chevron or for granny's coffee klatsch. Equalize the playing field, limit the amount of money that such entities can spend (yes folks, it would actually be fairly easy to define them) to $10,000 or a $100,000 per election cycle. Identify and eliminate the potential loopholes. Whoa, it could be done! Just as the disclosure requirement can be done. Not enough to buy a commercial? Make campaigns less expensive for candidates, as the piece suggests.

 

Do I "support banning the anti-Hilary ad put out by a non-profit group and those like it"? No, I don't support banning the ad or others like it. I'm for putting limits on the amount of money that a corporation can spend in support of a politician or an issue in an election cycle. The Court decision is the opposite of that because it, like the ACLU, is institutionally blind to the issue of what and what shouldn't constitute an individual with full legal rights.

[ivan]

Do I "support banning the anti-Hilary ad put out by a non-profit group and those like it"? No, I don't support banning the ad or others like it.

than your opposition to this decision is schizophrenic, as that is ultimately what courts have to do: rule on the exact situation in front of them, not make the world the way they think it oughta be.

 

they should have been allowed to play their suck-ass movie