http://www.prospect.org/csnc/blogs/tapped_archive?month=01&year=2010&base_name=citizens_united_and_electoralCitizens United and Electoral Exceptionalism.
"What will the effect be of the Supreme Court's Citizens United on elections?" Scott Lemieux asks below. For all the reasons he describes, the decision is enormous, radical, and wrong, and it will undoubtedly have sweeping impact on future election law as well as other areas of First Amendment and corporate law.
But
it is important not to overstate the immediate effect on our political life. The "OMG, corporations are now people, with free speech rights!" reaction to the decision overlooks the fact that for almost all purposes, corporations do have free speech rights, and should, although they can be subject to balancing tests just as all rights are, as Scott shows. The principle area in which corporate rights are balanced has been around elections, in which speech rights are balanced against the interest in reducing corruption and, until the Austin precedent was overturned today, reducing the distorting effect of money on the process.
Even those restrictions were fairly limited, and in fact, the video at question in the case, Hillary: The Movie, would not actually have been restricted by them. Corporations can use their political action committees to directly influence election outcomes; they can use their own funds to run ads before the 30- and 60-day pre-election windows; they can say anything they want, at any time about issues.
Elections are just one part of democracy. We carve out a carefully regulated space for them, as any democracy should, but that electoral exception is not the whole of politics, as we should be particularly aware today. After all, the election of 2008 produced a president and Congress committed, among other things, to health reform. It hasn't happened, and it didn't happen in the past, in large part because of corporate spending of all kinds. (That was even more true in 1994; this time around, the White House made major concessions to the corporations that ran ads like the "Harry and Louise" series to keep them quiet.) And corporate spending to bring down health reform unquestionably created the environment in which Senator-elect Scott Brown could capitalize on that sentiment -- even if no corporation ever ran an ad that encouraged people to vote for Brown. The election exception doesn't achieve all that much, and the only way to really reduce the role of corporate money in politics and public questions would be to go much further in the other direction, limiting corporate speech (and probably the speech of wealthy individuals as well) in many other contexts -- something that few of us are willing to do.
And even in the context of elections, Citizens United is not the end of the line for campaign finance reform. It's just the end of the line for the traditional kind of reform that relies primarily on futile efforts to limit spending, such as the McCain-Feingold Act. Real reform that expands the ability of candidates and citizens to speak and to be heard is alive and well, and is now the only path to a fair political process.
-- Mark Schmitt
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http://prospect.org/csnc/blogs/tapped_archive?month=01&year=2010&base_name=some_initial_thoughts_on_citiz#118119Some Initial Thoughts On Citizens United.
I will defer to Mark with respect to questions of how today's big ruling will affect elections. There are, however, a few additional points worth making after an initial read of the Court's 5-4* gutting of restrictions on corporate campaign spending:
* As I said after the oral arguments, I don't have any strong objection to the Court's ruling that the restrictions placed on showing Hillary: the Movie were unconstitutional. Such a holding would be quite defensible even under a legal framework that tried to balance First Amendment interests and the importance of fair elections. The real question was whether the case would be decided in narrow or broad terms, and alas it's very much the latter. The Court overruled both a 20-year precedent permitting greater restrictions on corporate speech and parts of a more recent ruling upholding the McCain-Feingold Act, and has essentially held that for-profit corporations have the same First Amendment rights as individuals.
* On a related note, it seems worth nothing again that Chief Justice Roberts's purported "minimalism" -- so often touted by his defenders, including liberals who should know better -- is an empty fraud. At least in this case -- unlike previous campaign finance rulings -- the Court was willing to overturn precedents explicitly. But, certainly, this should serve as a reminder that it's farcical to claim that modern judicial conservatives stand for substantive "minimalism" or "judicial restraint."
* The central line of argument in Justice Kennedy's majority opinion -- that the First Amendment does not permit distinctions based on the identity of the speaker -- is superficially attractive. The problem is, there's no reason to believe that any of the justices believe it. In addition to the examples in Justice Stevens' superb dissent, consider Morse v. Frederick, a decision denying a free speech claim which all 5 of the justices in today's majority also joined. Obviously. Nobody would dispute that an ordinary citizen who unfurled a "Bong Hits 4 Jesus" banner could be sanctioned by the state; the punishment was upheld solely based on Frederick's identity as a student, which meant that his free speech rights had to be balanced against a school's interest in preventing drug use (and could be denied even if there was no plausible argument that his speech actually would promote drug use). If this kind of balancing test is permissible, surely Congress should be permitted to place some weight on the importance of fair elections when considering the First Amendment rights of for-profit corporations.
*The parts of the law requiring that people responsible for a political ad clearly disclose their responsibility and that persons spending more than $10,000 per year on political communications file a statement with the FEC were upheld 8-1. Justice Thomas held that even these minor restrictions were unconstitutional.
--Scott Lemieux
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