The campaign finance case (Citizens United v. FEC)

The U.S. Supreme Court’s 5-4 decision last month in Citizens United v. Federal Election Commission is an example of judging divorced from reality. To mention at the outset something that has occasionally gotten lost, this case was not about direct contributions to candidates by corporations: such contributions remain illegal, although corporations’ PACs (political action committees) may contribute to candidates. Rather, Citizens United had to do with advertising by corporations that endorses or advocates the election of a particular candidate, either directly (vote for X) or by criticizing a candidate’s opponent (Y is no good; therefore [implied message]: vote for X). The decision basically says that it is unconstitutional to prohibit corporations from financing such ads with money in their general treasuries. The main reason? According to Justice Kennedy’s majority opinion, corporations are speakers and money is speech, and the statutory provisions in question violate the First Amendment by "banning" political speech. As the dissent argues, "ban" is a misnomer since the law at issue deals with one method of financing speech; corporations have been and still are free to form PACs, solicit contributions to them from shareholders, employees and their family members, and use that money to fund their electoral communications. The majority pooh-poohed this point.

In overturning a 1990 decision, Austin v. Michigan Chamber of Commerce, which held that the government has a compelling interest in checking the "corrosive and distorting effects" of unlimited corporate spending in election campaigns, the Citizens United majority purports to regard ‘the marketplace of ideas’ as incorruptible and inherently self-correcting. In the majority’s view, speakers -- defined to include corporations -- speak; the electorate then separates the wheat from the chaff, the true from the false, irrespective of how much one side’s voice is amplified by the money at its disposal. That the electoral process almost certainly does not and almost certainly will not work in this way in a polity and society where corporations have a privileged position -- and where their organizational attributes allow them to amplify their influence on the electoral process -- is reasonably obvious, or so one would have thought, to anyone who has not been living under a rock.

(Note: At the oral re-argument of the case last September, which I heard broadcast on C-Span radio the day the decision came down, Solicitor General Elena Kagan, arguing for the government, declined to offer a strong defense of the "antidistortion rationale" of Austin, though she did of course urge the Court not to overrule the case. The government, it’s now clear, was going to lose regardless of who said what at oral argument, but Chief Justice Roberts in his concurrence made a point of quoting Kagan’s statement that Austin was not the clearest opinion (she either said "not the most pellucid" [which is how I had heard it on the taped broadcast] or "not the most lucid" [which is how Roberts quotes her from the transcript].)

As Justice Stevens’s dissent points out, the Citizens United decision will greatly advantage corporations vis-à-vis political parties, since parties are prohibited from raising and spending "soft money." As the dissent also points out, the majority failed to understand that the regulations at issue did not pit certain interests having nothing to do with the First Amendment against the claims of free speech. Rather, the questions raised by limits on corporate money in elections bring one kind of First Amendment interest into tension or conflict with another kind. Since I can't say this better than Stevens did in his dissent, I will quote him:

"All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, 'that there is no such thing as too much speech,' Austin, 494 U. S., at 695 (Scalia, J., dissenting) [footnote omitted--LFC]. If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s premise would be sound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.

"None of this is to suggest that corporations can or should be denied an opportunity to participate in election campaigns…or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is that Austin’s 'concern about corporate domination of the political process,' 494 U. S., at 659, reflects more than a concern to protect governmental interests outside of the First Amendment. It also reflects a concern to facilitate First Amendment values by preserving some breathing room around the electoral 'marketplace' of ideas….

The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other. There are, to be sure, serious concerns with any effort to balance the First Amendment rights of speakers against the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to 'First Amendment principles' depends almost entirely on the listeners’ perspective [this is a reference to the majority’s argument that the regulations deprive listeners of valuable information--LFC] it becomes necessary to consider how listeners will actually be affected."

I also urge those interested to read the powerful concluding section of the dissent.