Citizens United Decision and Free Speech

The Supreme Court issued a significant ruling this week on the subject of campaign financing. It is a complex subject and the opinions authored by the Court illustrate this complexity checking in at 183 pages (read here if you dare). I have read most of them and will offer my thoughts.

In the 2008 election cycle, a group called Citizens United produced a film called Hillary: The Movie which was apparently quite an unfavorable depiction of the Presidential hopeful. Citizens United intended to distribute the film as an on-demand pay-per-view on DirecTV. The commercials which supported the film were deemed an “electioneering communication” by the U.S. District Court of the District of Columbia and the film was not shown. Citizen United is a non-profit 501(c)4 corporation which has special non-profit status in that, unlike standard non-profit 501(c)3 charitable corporations, they can participate in the political process via lobbying and and campaigns. If this sounds complicated already, then welcome to the world of campaign finance in the United States.

This decision set up the Supreme Court battle which was decided on January 21. In what appears to be a unique decision, the Court decided 5-4 in favor of Citizens United overturning precedent in previous cases and ruling parts of the Bipartisan Campaign Reform Act (McCain-Feingold) as unconstitutional. The effect of this decision is that corporations (and unions) may now use unlimited funds directly from the general treasury to engage in electioneering communications. However, such funds (still) may not be used to contribute directly to candidates or to other political committees (political parties and political action committees known as PACs). Further, contribution limits and regulatory disclosures are left unchanged in the decision.

An electioneering communication is one that clearly advocates the support or defeat of a particular candidate (follow the link above to get a complete definition) before an election. Corporations and unions were previously prohibited from such communications, but no restriction existed for individuals or various groups such as political committees or “527” groups. This nuance is essentially what led the Court to its 5-4 decision. They felt that Citizens United should not be prohibited from electioneering communications as it restricts free speech and argued that any relaxation of the prohibition must lead to the sweeping decision they ordered.

Justice John Paul Stevens authored the dissent. He lambasted the majority on two key points. First, he felt that the majority overstepped its bounds in the tradition of the Court by providing such a sweeping decision which essentially overturned two previous decisions and a major piece of recent Congressional legislation. Second, he felt that the consequences of allowing corporations to engage in unlimited spending on electioneering communications would be detrimental to democracy and inconsistent with the Founders’ vision. Justice Antonin Scalia offered a concurring opinion which focused largely on a rebuttal to the dissent’s view of the Founders’ intent.

There is a lot of big money in politics. Certainly, the electorate is aware and skeptical of how big money can lead to big corruption. It will be interesting to see how this ruling will change the political landscape of the 2010 elections. The fear expressed by those who disagree with the Court is that this will lead to more corruption and allow corporations to dominate the political discourse. A more philosophical opposition to the decision is on the nature of corporate personhood.

I am not going to devote a lot of effort here to the debate on corporate personhood. However, briefly, we must recognize that corporations engage in contracts, can litigate, pay taxes, and are subject to criminal, civil, and financial liability. Also, corporations are ultimately comprised of individuals. This allows for an interesting tangent of debate which I will not pursue. I will point out that limiting the free speech of media corporations or even non-profit corporations would seem to be anathema to most. I would find it difficult to objectively draw that line to prevent large for-profit corporations from exercising free speech.

Money gives power in many aspects of society. There is no doubt to that. Corporations have a lot of money and thus have a lot of power. Power in the political discourse allows for views and opinions to be expressed, candidates to be laud and vilified. Exercising power also comes with a price. While most of the electorate will be unlikely to monitor great sites like OpenSecrets.org to determine who is paying for campaigns and ads, the disclosure requirements of the FEC enable such organizations to educate and inform. The media, advocacy groups, and interested individuals are empowered more than ever by the internet to report perceived improprieties and report on the relationship between money and politicians.

Our system is not perfect and democracy is a dirty business. Corruption will always exist, but it is the duty of the electorate to be informed and educated in a functional democracy. We cannot force this upon voters, but that should not force us to restrict free speech. This may lead to more corruption or at least the perception thereof, so interested opponents should take steps to counter this.

Be active and hold your elected officials and candidates responsible for their actions. Vote with your dollars if you disapprove of a corporation’s political activities. Sell their stock. Boycott their products. Tell others to do the same. Last, but not least, be an advocate for better representation in government. Members of the House today represent about 700,000 citizens on average. Increasing the size of the House would lead to greater accountability, more equitable representation across the States, and less money involved in each race. This would be a far better remedy than restricting free speech.

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