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Thoughts on Citizens United v. Election Commission

Posted By on January 27, 2010

I’m not sure Citizens United is the disaster some have it out to be. I don’t think we’re  about to experience the end of democracy, or see Ronald McDonald in the White House.

I’m also not sure it’s wrong – in fact, I think it’s correct.

Descriptions of Citizens United in the media have been inaccurate. Which is not surprising.  The opinion is obscure.  The syllabus alone runs to  7 pages, and with dissents and concurrences it all adds up to 183 pages.

The meat of the decision starts on page 27, where the Court quotes the First Amendment:

“Congress shall make no law… abridging the freedom of speech…”

While we typically think of the First Amendment as a right, technically it’s a prohibition.   It’s a limit on government power.  If you accept this, then the identity of the speaker doesn’t matter.  Or, as the Court says, “The identity of the  speaker is not decisive in determining whether speech is protected.”

The Court goes on to identify the law as the kind of law the Court has traditionally been  most suspicious of:  it is a law enforced with a criminal penalty that strikes at speech at the heart of the First Amendment: political speech – in this case, speech about candidates for public office.

The law is “an outright ban, backed by criminal sanctions.  [It] makes it a felony for all corporations – including nonprofit advocacy corporations – either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications…”

The Court identifies the ACLU and the NRA as organizations affected by the ban.  The ACLU could, for example, say “Support candidates who support free speech,” but it can’t say “Support candidate X who supports free speech.”

Finally, the law discriminates: if a corporation owns a media company, it’s free to do as it likes.  The corporations that own Fox News and The New York Times have freedoms other corporations do not.

The Court identifies “strict scrutiny” as the constitutional test to be applied. (Though,  interestingly, does not seem to actually apply it.) The Court points out that, in effect,  it’s returning to an older line of cases, and spends many pages attacking the rationale  behind the decision it’s overturning.

For my part, I have no problem with the idea that corporations don’t have “rights” in the  human sense of the word.  Corporations, are, however, little more than associations of  people, and the mechanisms set up to stop them from identifying with or supporting certain  candidates strike me as cumbersome and unworkable – more likely to snare the innocent than  catch the guilty.  Corporations that really want to get involved in politics, in other  words, are already doing it – they’re just being sneaky about it.

Moreover, the specter of a new flood of corporations flooding the airwaves to tell us whom  to vote for seems farfectched.  Does McDonalds really want to piss off half their customers  by supporting the candidate of the other half?  Does Pepsi really want to be known as “The  Voice of the Republican Party”?

I doubt it.


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