Clearing Out the Crap on Citizens

5

If you’ve been living under a rock recently, I am pleased to inform you that the Supreme Court made a somewhat controversial decision a few weeks ago. The case is called Citizens United v. Federal Election Commission (Though you can also use FEC or Federal Election Comm’n).

The facts: Citizens United, the case says, wanted to put a movie that they had made about Hilary Clinton on Video On Demand. The video was expressly advocating people to NOT vote for Clinton. This video, paid for by the corporation, is prohibited under part of the Bipartisan Campaign Reform Act . The part of this act that the Supreme Court struck down says that corporations cannot produce ad campaigns expressly advocating for or against a candidate within 30-60 days of the election. The FEC brought charges against Citizens United. In March 2009 the case was heard, and the decision was just laid down.

The Decision The court decided that the main issue of the case was whether or not the particular part of the BCRA violated the first amendment. That is, the court decided that preventing corporations or labor unions from producing ad campaigns in elections was a violation of their first amendment rights. They ruled in favor of Citizens United, 5-4.

Reasoning: To someone who hasn’t studied constitutional law, the decision may be somewhat confusing (speaking as someone who has studied it, I still had to read the case a few times and ask my professors). The decision comes out of two different areas: the nature of a corporation and the legal precedent involving first amendment rights.

Corporate Individuals — Imagine you make a car from scratch. Everything in the car is your own design, you made your own parts, etc. Now, say you sell that car to someone. Unfortunately, you aren’t the best auto-constructor in the world; the car crashes. The person you sold it to (or his family, if he/she didn’t survive) sue you for all you’ve got, and they’re within their legal rights to do so. Now, say it was you and your friend who built the car, or you and your friend and his friend, and so on. If you do not have the rights of a corporation, the person who bought your car could sue each and every person who contributed to the construction of that car.

You can see where the problem lies. If the business is big enough, there could be people who are getting litigated against who may not have had anything to do with the construction of that car. Thus, the corporation is created. That way, when the Firestone tires blow out and kill passengers, the individual employees or owners of the company don’t suffer for things they may not have had part in, but instead the group as a whole or, the corporation, is sued. Legally, the corporation stands as an individual. They are granted certain rights from the government as if they were a single person. When litigation comes against them, it is the corporation’s funds, rather than the funds of its workers, that are depleted.

Now, whether that is a philosophically correct way of looking at it or not, that is a rough sketch of the nature of the corporation and how it stands in our legal system.

Mitigated Rights (Within Reason): Many Americans know this through unfortunate first-hand experience, but the first amendment right to free speech is by no means an absolute freedom. The best (and most worn-out) example is that a person does not have the freedom to shout “fire” in a crowded room because it has the potential to harm people by inciting a panic. One can also be written up on inciting a riot or inciting people to violence. Like the definition and legal standing of corporations, there are many, including myself, who disagree with this mitigation of free speech, but unfortunately the courts have spoken.

However, as the courts were limiting the freedom of speech, they realized that some freedoms needed to be left over. As such, though 200 years of legal precedent, we have the following rough guidelines for speech laws:

  1. 1. The law must not be too broad, so as to prevent any kind of speech. It needs to be specifically tailored to prevent a particular harm that comes from speech. So, you can’t make a law that says “Any speech that criticizes Muslims is illegal,” but you can make a law that says “preaching the gospel and the evils of Islam in a majority-Islamic neighborhood is illegal.” Just as an example.
  2. 2. The law must also not be too specific, so that it only prevents a specific person or group of people from speaking certain things. That is, you can’t make a law that says “Christians are not allowed to preach the Gospel on Mondays from 1-3” (it is targeted at a particular group of people). But you could, perhaps, make a law that says “Protesting is not allowed in Market Square during peak traffic periods.”
  3. 3. The law must not chill speech, so there can be no pre-emptive lawmaking. Basically, a lawmaker cannot construct a law for speech that has not happened yet, nor can it prevent speech from coming out. As such, the majority of speech laws cannot be retro-active.

Thus, the Supreme Court, recognizing Citizens United as an individual with rights, said that the FEC’s law that prevents certain types of speech coming out was unconstitutional. The law, it said, chilled speech and therefore was in violation of previous court’s precedents that said no law as such can be constitutional. Citizens United won the decision, 5-4.

I think that their legal reasoning is sound. I may not like the precedents on which it is based, but I think that, legally speaking, the Supreme Court almost had no choice but to rule the way they did. They are bound in many ways by precedent, and in a common law system where precedent is as good as law, it would have been much harder to justify ruling in favor of the BCRA.

Reactions: The dissent, Obama, and the Press

Here comes the fun part. Watching people react.

Spending Without Limit:

The Supreme Court rarely if ever agrees with each other, so there was, of course, a dissent. Most of the cases that are interesting and worth looking at are either 5-4 or 9-0, so I am largely unsurprised with the way the voting has turned out. I have not personally read the dissent (give me a break — the case is over 100 pages long!), but here, I suppose, is the core of it. John Paul Stevens wrote in his dissent, that the decision “dramatically enhances the role of corporations and unions — and the narrow interests they represent — vis-a-vis the role of political parties — and the broad coalitions they represent — in determining who will hold public office” (Cite!)

Does it really? No, not really. Prior to the Citizens decision, if a corporation wanted to contribute to an election, they had to setup what is called a Political Action Committee. They had to have separate funds, a separate treasurer, and were liable to much oversight. Philosophically, as the court says, this is a huge hindrance on free speech. However, is that any real obstacle to a multi-million dollar corporation, who hire entire teams of lawyers to wheedle out of tax codes? Hardly. If a corporation really wanted to contribute to an election via their PACs, they would have been able to easily.

Secondly, the only thing that this decision has affected has been that companies can now produce ad campaigns. They still cannot, I repeat: they still cannot contribute to candidates directly. So, it’s not as if before Citizens Google or Whole Foods was chomping at the bit, wanting to donate money to fiscal conservatives and now they are just free to spend millions of dollars as they will. No. Does the decision make it easier for corporations to contribute? Yes, but does it really let them go hog-wild where before they were narrowly constrained by their PACs? Hardly.

Obama’s Oops, and Foreign Corporations

If you are politically active at all, I’m sure you saw the State of the Union Address. And I’m also sure you saw President Obama call out the Supreme Court in his speech.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections…. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities” (Cite!)

When Obama was saying this, Alito was shaking his head and seemed to be mouthing the words “untrue.” People harkened back to the “You lie!” incident, and saying that the Supreme Court taking any sort of stance in the State of the Union address was rare.

The thing that bothered me about this is that there seems to be very little emphasis on the fact that Obama was factually incorrect. The reason why Alito was shaking his head was twofold. Firstly, the Citizens case only struck down a certain part of the BCRA and it was only applied, as mentioned earlier, to ad campaigns. Secondly, there is a completely separate law on the books from the BCRA, that prohibits foreign corporations from participating in our elections (I have yet to find the name of the law, but several different news outlets and blogs have confirmed this, not the least of which is Factcheck.org .)

The dissent to Citizens brought up similar concerns about influence of foreign corporations, but at worst it is unclear as to how the Supreme Court ruling would interact with that law. Pandering to the fears of the public? Mayhap. Perhaps didn’t read the case clearly and/or is unaware of the laws? More likely. Good job, President Obama.

The Press

I get a lot of my Supreme Court news from yahoo news, and I have been pleasantly surprised how well things have been represented.

One thing that really irked me about the media coverage about this, though, is that so many media outlets focused on Alito’s disagreement with the president, calling his shaking his head an odd move, and something that is not done very much, whereas President Obama couldn’t possibly have done anything wrong in this. Simply adding “with all due deference to separation of powers” doesn’t make calling out the Supreme Court when they can’t respond or rebut in a public setting like that is, if anything, cowardly. Nor does adding “I believe” to the first part of a sentence keep what you say from being completely unfounded.

On the whole, though, I was pleasantly surprised at the amount of fact checking that went down in the media coverage. I saw several sources note that corporations couldn’t contribute directly, and a few more that noted that there was a separate law on the books forbidding foreign interference.

I think perhaps the fatal flaw, though, and the liberal bias that pokes through in all of this is that, when they’re not quoting the case itself, people only really talk about corporations and their influence in elections, as if this decision won the government for the fiscal conservatives for the rest of forever, because corporations were going to back them. However, what is important to note is that the decision applied to both unions and corporations. I think that is important to note, and may alleviate fears of those who may think corporations may overrun our government. Though true enough that unions aren’t as forthcoming, numerous, or powerful as corporations, they still have their say, and they too have these rights, this potential influence.

Summary

It seems, despite many people’s claims to the opposite, that the political landscape won’t change that much. There is still a bit of an imbalance of power between the left and the right, and adding corporations and unions to the mix doesn’t change that imbalance. PACs have been an avenue for corporations and unions to contribute to campaigns for a while now. Though they represented an undue burden on the right of corporations to speak (as the Citizens case points out), it wasn’t that much of a burden for a company with such resources.

I think the court was legally correct to make the decision they did, and it was a rare case in which they corrected a wrong, but it doesn’t seem to change much.

As with all things, though, time will tell.

  • What a good blog you have here. Please update it more often. This topics is my interest. Thank you. . .

    • admin

      I’m glad you enjoy the blog. However, I try to update when I feel I can write something well. So even though it may be infrequent, my updates ate better for it

  • Sally Mac

    Hey thanks! I understand better now. I heard Newt Gingrich say it would be OK if there were a law that insists that the identities be known of all those who contribute to a PAC or ad campaign, that would go more the core of the problem. I don’t trust Gingrich with much, but that made sense.

    Another random thing for Thoughts on Liberty to consider: a lawyer friend of mine once pointed out that all the problems with the out-of-control liability settlements started when Congress–whose membership of course is almost entirely made up of lawyers–passed the law on “joint and several” liability which, as I understand it, made it possible to sue a party with 1% of the liability for something that happened to you for 100% of your damages. Giving us a lot of rich lawyers and ads for contingency law firms fishing for people to let them sue for them. Interestingly, no one (in Congress–see note above) has ever suggested rescinding that law.

    Does the Goldwater Institute have a position on that, by the way? I would be very interested to know what they think.

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