Citizens United v. Federal Election Commission

January 29, 2010

As you will be well aware, I am not a lawyer, but I am able to read. Because of that latter fact, I have become quite annoyed with much of the commentary that has been offered so far on this decision. I’m going to attempt to add some information to the debate.

1. The ruling is not based on the idea that corporations are “persons.”

Scalia opens his concurring opinion with these lines:

I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings,” post, at 34 (opinion concurring in part and dissenting in part) (hereinafter referred to as the dissent). This section of the dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.

That’s all. Arguing about whether corporations are “persons” is a waste of time. The majority does not believe it.

2. First Amendment law on “free speech” is not settled by dogmatic adherence to a single principle.

This is an argument you’re as likely to hear from defenders of the decision as anyone else. “It’s a slam-dunk. The case is about free speech, and the constitution says ‘Congress shall make no law.'” That’s not true, either. The decision was, in fact, 5-4, which should give anyone who argues that the case was easy to decide some pause.

In Stevens’ dissent, he writes:

The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.

And there you have the central issue in this case. The Court recognizes that free speech is important, but understands that the Government sometimes has a compelling reason to restrict speech. The question, then, is whether the Government has a compelling reason to restrict electioneering speech by corporations in the way that they did under section 441b. That isn’t an easy question to answer axiomatically.

3. “[T]he 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.”

In the majority opinion, Kennedy writes:

We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.

At the moment, section 441e, which bans contributions and expenditures by foreign nationals, including corporations, is still in effect, and the Court has not ruled on whether the ban is constitutional. People who think that it’s easy to get from the Citizens United ruling to striking down 441e weren’t paying attention to point 2. The Court will consider whether the Government has a compelling interest in banning speech by foreign nationals, if and when a case challenging sec. 441e is brought before the Court. But they haven’t considered it yet.

4. This case is not about “judicial activism.”

Yes, some idiot commentators decry “judicial activism” every time a court makes a decision they don’t like. But Republican have always been idiots. You’ve known that for a long time. If you want a thoughtful take on the role of the Court and the idea of stare decisis, try reading Chief Justice Roberts’ concurring opinion, explaining why the majority thought it necessary to strike 441b on its face, rather than accept an as-applied challenge. The judicial modesty, “Roberts said in his confirmation hearing that judges should be like umpires” argument doesn’t get you very far. Surely you didn’t believe that his statement implied that judges should never rule any law unconstitutional? That would be an absurd interpretation.

5. There is not, to my mind, much evidence that 441b did much to improve the quality of American government.

On this point I’m not straightforwardly quoting from the opinion, but this post contains most of my thoughts on the decision, so I’ll include it as well.

Don’t assume that monetary expenditures on electioneering are the worst or even a particularly bad way of influencing elections. Like rent-controlled apartments, political influence has to be allocated somehow. Removing money as a factor just makes other factors more important, and those other factors aren’t a priori better. Remember how the exit visa process was run by Captain Renault in Casablanca.

Those are my thoughts on the ruling. Again I offer my futile plea that people actually read the opinion before commenting on it. Many, many of the standard objections are based on misrepresentations of the Court’s opinion and improperly-considered appeals to lofty principles.

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One Response to “Citizens United v. Federal Election Commission”

  1. Rrrobert! Says:

    I haven’t read the case, so can’t argue deeply on the subject, but some thoughts for discussion:

    1. The premise that corporate speech is the speech of an association of persons (and that it is therefore subject to the same protections) seems shaky to me. As a general rule, I’m not consulted about how I’d like a corporation to speak; nor is anyone except the board of directors. To assert that corporate speech for companies I own is an expression of my speech rights skirts infringement of my own right to speak on my own behalf. Certainly, in some cases corporations DO speak for an association of persons, and that speech ought to be protected, but there’s definitely a distinction between how representative ExxonMobil’s speech is and that of, say, a small LLC, or a non-profit advocacy group. This point may or may not be relevant to the decision, but it’s interesting anyway.

    3. I think you can make a defensible claim that this decision lays groundwork for spending by foreign companies, even if the court didn’t reach the issue. First, it lays groundwork for a challenge to (e); second, without the broader restriction on corporate speech, it seems like a foreign company could just own a US company, which could spend at will. I could easily be wrong on this, of course.


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