In Praise Of Citizens United
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Despite what your hippie friend has been posting all over Facebook the last few weeks, the Supreme Court's ruling in Citizens United v. FEC isn't the end of democracy as we know it. Corporations aren't going to supplant our system of government with a Toyota-Truck-Month presidency and a Congress brought to you by Carl's Jr. This isn't the first step to Costco running as a candidate for Senate and Wal-Mart showing up to the polls on the first Tuesday in November.
If you don't believe me, just open your door and step outside.
California, along with 26 other states, has no restrictions on corporate spending in elections. Corporations, unions and issue-oriented groups in the Golden State are allowed to spend freely on ads supporting or opposing a candidate. Even Texas has stricter campaign finance laws than we do, and yet our democracy seems to be doing fine.
Though it's somewhat true to say that the Jan. 21 decision of the Supreme Court changes about 100 years of law on corporate contributions, these restrictions were not as clear cut as one might think. Starting in 1907 with the passage of the Tillman Act, corporations and later labor unions were restricted from contributing money to federal campaigns. However, unions and corporations were still able to finance elections at will largely because the restrictions lacked any effective enforcement.
That all changed with Watergate, when it was discovered that Nixon had diverted money from his campaign funds to finance the break-in, (along with other assorted "rat fucking" conceived in part by USC alumnus Donald Segretti.) The Federal Elections Commission was assembled to administer a new set of campaign finance laws, which were modified after the seminal 1976 Buckley v. Valeo case. The Buckley decision set several important precedents in campaign finance, most notably the standard that the state could only restrict money in campaigns to prevent actual quid pro quo corruption or the appearance thereof. As the court opined in that decision, "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment..."
That precedent is crucial to understanding why the Supreme Court voted the way it did in Citizens United. At issue in that case was whether Citizens United, a 501(c)(4) or "social welfare organization," could use its general treasury money to produce and air a movie heavily critical of Hilary Clinton within 30 days of the 2008 Democratic Primary. Because Citizens United is organized as a corporation, its free speech rights were limited under the McCain-Feingold Act.
The real issue in Citizens United was not whether corporations are allowed the same free speech rights as people, but whether there is a compelling reason to place a limit on the First Amendment when the speech happens to come from a corporation. In deciding matters of such grave constitutional importance as restrictions on speech, the court is bound by duty to employ "strict scrutiny" in determining whether the law in question is constitutional. To pass, the law must serve a compelling state interest, achieve that interest by the least restrictive means possible and tailor its language as narrowly as possible so that only the compelling state interest is served by the law.
McCain-Feingold placed restrictions on more than just the Exxon's or Aetna's of the corporate world. As Justice Kennedy wrote in his opinion:
"[T]he following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presiden//tial candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship."
All Citizens United did, essentially, was remove the barriers one had to cross in order to engage in electioneering speech. One popular misconception about the verdict is that corporations will now be able to deluge candidates they support with campaign donations. That's wrong -- the court's ruling left intact a ban on corporations donating to a federal candidate's campaign unless they first form a Political Action Committee. In fact, all the verdict did was make it easier for anyone to add their voice to the debate of which candidate ought to prevail in a federal election.
Consider if Michael Moore's Fahrenheit 9/11 was released two months before the 2004 election instead of four. Under McCain-Feingold, it might have been banned in much the same way Hilary: The Movie was. The movie was produced in part by Miramax Films, (a corporation), and distributed to theatres where more than the McCain-Feingold threshold of 50,000 people could view it, (though the law doesn't specifically reference movie theatres, it doesn't exclude them either.) The film clearly referred to a candidate running for office at the time and for those who have seen the film it clearly "is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate."
In that scenario, you have to ask would society be better off if Moore's film was banned. Further, isn't the goal of the First Amendment not only to protect the rights of speech critical of the government but to encourage it? Anyone who defends McCain-Feingold really has to justify why they think it's better for voters to be exposed to less information before they go to the polls rather than more.
That principle -- of more information being better than less -- is the main reason why the Supreme Court made the right decision in Citizens United. The point of the First Amendment is to ensure that the marketplace of ideas is as broad and open as possible. The government does no one any good by limiting the flow of information in a free society despite what its intentions are. Whether coming from a corporation, a union or a lone citizen, free and unregulated speech is the lifeblood of our democracy and should be protected at all costs.
Justice Scalia said it best in an earlier challenge to McCain-Feingold:
"The premise of the First Amendment," he wrote, "is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech."
Stan Oklobdzija is a first year Masters student in the School of Policy, Planning and Development.
I don't entirely disagree with your analysis, but I think you are being a bit naive to dismiss the possible negative effects of this ruling. Yes, limiting free speech is not ideal and very tricky to do without damaging political discourse. However, making it way easier for corporations to threaten politicians with essentially unlimited and anonymous negative ads against them is obviously going to damage our democracy. You are right to raise the issues you mentioned, but be careful not to bury your head in the sand.
Keep involved.
PS I'm afraid that both you and Scalia need to read Rick Shenkman's Just How Stupid Are We: http://hnn.us/HowStupidAreWe/book.html
I'd also very highly recommend Robert Kaiser's So Damn Much Money: http://www.randomhouse.com/acmart/catalog/display.pperl?isbn=9780307266545
The former certainly has a partisan slant and is a bit lean on ideas for solutions, but worth reading nonetheless. The latter is truly exceptional writing.