Even biased judges sometimes decide cases correctly, and with free speech experts of all stripes applauding the Citizens United decision, it’s far from apparent the Supremes falsely interpreted the First Amendment for political or ideological reasons.
Refuting conventional wisdom that the man who wrote the majority opinion was nefariously motivated, left-leaning constitutional scholar Jonathan Turley told Keith Olbermann: “[Justice Anthony] Kennedy is no corporate shill. He really believes in this. I’ve talked with him, and many people have talked with him. He does believe in the First Amendment aspects of this, and for him it is all about criminalizing speech. It’s all about limiting speech.”
Liberal blogger Glenn Greenwald added: “If a settled proposition of law is sufficiently repugnant to the Constitution, then the Court is not only permitted, but required, to uproot it.”
To free speech advocates, the controversial SCOTUS opinion is on the mark. They recognize its authentic passion. One is free to disagree with the reasoning, but criticism based on the judges’ reputations is, to say the least, unconvincing.
Maybe those jurists are wrong about one thing or another, but simply dismissing the opinion as judicial activism ignores the government’s failure to prove its case, and avoids confronting the Court’s judgment that the restrictions it rejected were arbitrary, confusing and ineffective.
It’s certainly true – as the government argued and Justice Stevens agreed – that the fear of corruption was enough in previous cases to convince the Court that limiting the independent campaign expenditures of corporations was justified. But the majority in Citizens United rightly said fear alone isn’t enough to deprive corporate speakers of First Amendment rights. Therefore, most corporations (and all unions) are now permitted to finance ads that mention a candidate by name anytime.
There’s no reason to conclude corruption is caused by corporate-sponsored ads in which candidates are endorsed, or that the imposed “remedy” was necessary, effective and fair (i.e., not arbitrary).
According to a recent New York Times article: “Legal scholars and social scientists say the evidence is meager, at best, that the post-Watergate campaign finance system has accomplished the broad goals its supporters asserted.”
Volokh points out on his blog that in California – one of 26 states where unlimited political spending by corporations was allowed even before Citizens United – “ordinary business corporations aren’t by themselves providing enough funding to register on the top 10 [list of donors].”
No corporations affect elections more profoundly than media companies, but they were nonetheless exempt from the now reversed ban. Why their dominance should be legislatively maintained by limiting the influence of other types of corporations, hasn’t been explained by those who insist the restrictions made sense.
For example, General Electric, a huge defense contractor, was forced to comply with campaign finance laws, but the media companies it owns were unrestrained by any such regulations. So GE has been relying on NBC and MSNBC to sell the public sufficiently hawkish candidates (and the “War on Terror”) on behalf of their parent company.
With significant influence exerted by PACs and lobbyists in addition to media companies, worrying about corporate-sponsored political ads is like rearranging deck chairs on the Titanic.
Critics of the SCOTUS decision have been whining that money isn’t speech. But nobody claims it is. It’s just that money is required for mass communication, so restricting funds is restricting speech and therefore subject to strict First Amendment scrutiny. Suddenly that interpretation is unreasonable?
As neither time nor location is speech, will “reformers” next claim it would be constitutional to ban striking workers from picketing within 30 miles of their work site and at all times except Sunday afternoons? By the same literalistic logic, the First Amendment wouldn’t bar government agents from disconnecting the PA system in the middle of a political rally, because electricity isn’t speech.
Equally disingenuous is the argument that corporations aren’t people, as if anyone claims they are. The point is First Amendment rights aren’t generally based on the speaker’s identity, the manner in which speakers associate with each other or how speakers organize their finances. Those who disagree are the ones who are attaching special significance to corporations; it’s not the Court or supporters of its decision who have made an issue out of “corporate personhood.”
Dissenting in United States v. Auto Workers (1957), Justices Black, Douglas and Warren – three of the most admired (and liberal) judges in the history of the Supreme Court – wrote:
“Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group — labor or corporate…First Amendment rights are part of the heritage of all persons and groups in this country.”
In response to Citizens United, many liberals – including David Swanson, Marcy Winograd and the laughably named Campaign to Legalize Democracy (a coalition of “progressive” groups) – are going off the deep end by calling for corporations to be deprived of constitutional rights. If such an amendment were passed, states would be permitted to ban films, books, abortion advice or any corporate speech deemed objectionable. States would also be allowed to authorize police to enter corporate property without a search warrant or permission of the owner. The organizers and signatories of the various petitions espousing this nonsense haven’t explained why such consequences are acceptable to them, or why disentitling corporations to constitutional rights wouldn’t produce such consequences.
The oddly energetic Swanson is even spearheading a drive to impeach the five justices who sided with the plaintiff.
Others are more subtle about it. For example, People for the American Way claims we need to “pass a constitutional amendment granting the government the authority to limit corporate influence in elections without delay.” Likewise, Reps. John Conyers and Donna Edwards have proposed an amendment authorizing Congress to “regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.” But if the government didn’t already have such authority, how could corporations be prohibited – as they are – from making direct contributions to political candidates?
Some are sneakily framing their indignation as a shareholder rights issue. But directors of corporations are already prohibited from acting against the company’s financial interests. If existing laws don’t sufficiently protect shareholders, it seems sincere advocates would be calling for greater shareholder influence with respect to all business decisions rather than just when it comes to elections. After all, there’s not much evidence shareholders are particularly worried about political spending, or that they object to paying for endorsement ads but not lobbying.
It’s not clear what exactly President Obama had in mind when he disapprovingly and provocatively told the justices who attended his recent State of the Union address they had “reversed a century of law” to “open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” But whatever he meant, notwithstanding his reputation as a constitutional scholar, it seems Obama’s comment was much more a political statement than legal analysis.
The president’s supporters and fellow Democrats have been parroting the superficial “floodgates” warning at every opportunity. In doing so, they sap energy and attention from more worthwhile efforts such as promoting extensive electoral reform (i.e., instant runoff voting, public financing of campaigns, free media time for candidates) and inspiring the public to vote smarter and hold their elected representatives to higher standards.
The other insidious consequence is that self-described progressives are again giving away the free speech issue instead of claiming it for themselves. As former ACLU Executive Director Ira Glasser puts it: “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.”
They also fail to see how censorship is an act of force rather than reason, and how their unprincipled reaction to Citizens United exposes them as inadequate stewards of conflict resolution, whether it would pertain to a relatively minor disagreement or a major geopolitical dispute.
Liberals and Democrats obviously fear their ideological foes will benefit from the Court’s decision, and the nascent campaigns launched in response are unmistakable acts of political warfare, no matter how earnestly such tactics are presented as election fairness or shareholder rights crusades.
It’s not going to work.
This story was also published by The Huffington Post.
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Tags: ACLU, Anthony Kennedy, campaign finance laws, Citizens United, constitutional amendment, corporate personhood, corporations, David Swanson, Donna Edwards, electoral reform, Eliot Spitzer, Eugene Volokh, First Amendment, floodgates, free speech, Glenn Greenwald, Ilya Somin, Ira Glasser, Joel Gora, John Conyers, Jonathan Turley, Marcy Winograd, shareholder rights, Supreme Court