Citizens United case

I have a mixed reaction to this. On the one hand, I share a strong populist desire to see the influence and amount of control of "special interests" diluted in government. On the other, I have no desire to do so by limiting speech and the production of that speech, even by "evil" corporations and have a clearer idea than most how that speech is exercised. I'd like to think this gives me a different perspective on how the laws should be structured than the average populist.

1) A corporation should not be treated as a person legally. I have trouble with this statement. It might be sensible to disregard certain rights that are apportioned to people and not apply them to organisations of people. But there are several other competing special interests that are, like corporations, merely semi-permanent associations of people with some common interest in something and legal status to indicate this. Do we also apply the same merit of logic to exclude those associations from the political process (that would be things like: churches, various special interest associations, unions, media corporations and institutions of the press)? Why not? We are then told that the court overturned legal precedents. I find this uncompelling for much the same reason. The court has a history of overturning decades of legal precedents for compelling social and constitutional reasons. Plessy v Ferguson was the law of the land for almost 60 years. Corporations, as a matter of law, are "people", as a matter of legal precedent for decades also. This precedent was not overturned because corporations, and in fact people and any and all private or public institutions they form, are not listed as the source of our protections of free speech. It simply states that free speech is to be protected and no laws can be made to overturn it without referring to any organs that promote speech of any kind. Despite the somewhat idealistic tones of the Federalists with a vision of a party-less society capable of debating the weighty ethical and political matters of the day, it seems clear that they understood (in theory if not always in practice) that opposing views were not to be squashed by government fiat, whether they were held as popular or not. The government could oppose such views, by publishing studies with supporting documentation or by its publicly elected officials making speeches to clarify their views personally for the consideration of their constituents. But this is distinct from forbidding speech from any particular source, for any particular reason. We do have some unprotected classes of speech (Fire! or inciting imminent riotous and violent behavior). These however are extremely rare legal precedents and flat bans on corporate (and union and to a lesser extent privately provided) advertisements for or against candidates are not at all approaching such restrictions.

2) Corporations have too much influence over the legislative process. This may be true but there are some issues with this statement. First, corporations are competing against each other and against other special interests, say energy companies versus the Sierra Club (both are corporations) or GM versus the UAW (a labour union). Second, corporations may be exercising undue influence in legislation but they are doing it at the point of legislation, through lobbying dollars. Not through determining who gets elected (most often an incumbent, but "the mob is fickle, brother"). Money in elections (and their associated and interminable advertisements) tends to follow the candidate who is deemed the most likely to get elected.

The assumption of progressives whose cause is invested in this case seems to be that corporate money follows only Republicans, thus favoring them for elections. These progressives should check the facts of electoral war chests. Corporate sponsoring money and advertising follows winning candidates, regardless of party. There are some special interests, gun rights groups for example or abortion activists on both sides, who are unlikely to give money to a particular side. But corporate businesses, of the sort that we are encouraged to associate with the idea of a corporate patron unduly influencing the political process, are likely, with the possible exception of oil money, to give to whoever appears more likely to win (and to hedge by giving some money to the other side as well). This is, to some extent, one of the few very helpful things that Michael Moore does in pointing it out in his films the ties between a corporation and its purchased public servants. It would help a bit more if he likewise noticed when a union or a particular trade association makes the same determinations. Nevertheless, he is dogged in noting that such money does not wait for Republicans to win elections. The dirt is everywhere. And in point of fact, it is already everywhere even with this supposedly necessary restriction existing. If it was so essential to silence unions and corporate speech, why are they still perceived, correctly, as exerting enormous power over the political class and processes of federal (and in some cases state and local) law? Perhaps some investigation into that method would be warranted before decrying judicial activism in favor of the Constitutional rights of free speech.

3) Free speech should not be infringed. I'm pretty sure that this is in the Constitution somewhere. Do people lose their ability to speak because they are part of an association of others who share their interests? The argument against this seems to be based on an assumption that "money is not speech". Money may not be. But the money is a tool used to purchase advertising or to support particular views and candidates. Which is speech. The argument that "money is not speech" ignores the purposes and choices of how that money is being used by the people and bodies of people involved and effectively declares that private citizens have no right to speech either by silencing their ability to gather funding to support their own views. I find it far more likely that bans on corporate advertising surrounding elections, candidates, and issues, is a means to entrench corporate power and influence in other ways (such as lobbying or legally complex PACs) rather than a means to provide those corporations and the individual interests they represent with clear and unobstructed ways of defining their support. In other words, I'd rather the shit be right out in the open than somewhere I can't find it.

Now it is true that, say, the energy lobby tends to be more influential than the Sierra Club and Greenpeace at getting its agenda through Congress. The passion involved behind a particular special interest is not always matched by having substantial resources. But there again, this has very little to do with the process of electoral speech (who should you vote for!). It is the lobbying that requires more transparency and attention, not the process of elections. We hear the word "corporation" and immediately apply a rubric that says "evil gigantic business owners". This is not, by and large, the significance of who corporations are, many are non-profit charities for example. And, because of the legal codes in this country governing business, there are many ways that a business may be run without specific corporate logos and whose speech is more direct and unrestrained. Are we to favor the speech of those businesses over those of publicly traded corporations? I sympathize with the desire to see GM or Exxon or General Electric or Aetna or Kraft hold less sway because of their massive resources in lobbying and in supporting legislators who support their peculiar agendas, but not at the expense of limiting the ability of the UAW, the Sierra Club, religious bodies, and so on from competing against those views also (as would be only fair). Restricting speech at the time of elections (the time period when Americans are most aware of the political process, I use the term "aware" very loosely) has, in effect, increased the importance of speech at the time of legislation (the time period when most Americans are unlikely to be paying even a modest amount of attention to the political process), and thus served to increase the power and influence of already powerful bodies. I, therefore, see no reason to maintain such a policy. In fact, I would prefer it if more speech were focused in the opposite direction, to support candidates already amenable to particular views out of some philosophical principle of governance rather than to shape those views once in office.

More reactions:
Greenwald
McArdle
Somin

One other addendum point. It is not necessary for the Supreme Court or anyone else to endorse the views of Citizens United itself in order to find them Constitutionally protected. It is not simply favorable groups whose voices must be protected and heard, but any group with a perspective and what they feel as important information should have the right to air and seek to address their concerns. Restricting who shall have the right to express opinions, or even when they may voice those opinions and in what manner, is not something we should want to appoint as a power to the government in the first place. As with the freedom of religion, what is to say that a future administration will look upon the precedent of silencing a disfavored group to silence its new and different disfavored opponents (perhaps even a majority of the people)?