Tuesday, January 26, 2010

Demystifying Citizens United (AKA, That Supreme Court Decision From Last Week You Probably Hate Without Knowing Anything About It)

I'm half-asleep so I apologize if I'm even a little more incoherent than usual, but I thought I should intervene now and rescue my readers from their ignorance on this (as I hope to show, pretty unimportant) issue. And luckily for you law is something I actually know something about, and I don't have any strong views one way or the other on corporate money in elections, so unlike some expert commentary out there, what I have to say will not be disingenuous drivel. I plan to cover what the Court did, and didn't do, why I think their decision makes a fair amount of sense, and what actual impact this will all have. Some parts of the post are a little lengthy, so if you want to skip to my views on the real-world impact of the decision (last two paragraphs), feel free to do so.

What exactly did the Court decide last week?

If you take nothing else away, take this. Last week, the Court invalidated - found unconstitutional - a provision of McCain-Feingold that banned corporations or unions from spending money from their general treasuries on TV ads, broadcast within 60 days of a general election or 30 days of a primary, that told the viewer whom the corporation or union thought he should vote for. It did not say anything about corporations' rights to give candidates money. Just had to get that out there. Anyway, the provision the Court overturned, as it was meant in 2002, was supposed to ban ads that pretended to be mere issue advocacy, but were really designed to get viewers to vote for or against someone - ads that said, for example, "your Senator supports/is opposed to gay marriage, go write him a letter telling him how wrong that is," and said so days before the election, with the obvious purpose of getting supporters/opponents of gay marriage to vote against the Senator. However, several years ago the Court found it was unconstitutional to ban these sorts of ads, so all corporations couldn't do as of last Monday was run ads explicitly telling you whom to vote for. Now they can do that too. Things corporations still can't do and haven't been able to do since 1907 - give their own money directly to candidates. That's right - corporations can't give money directly to candidates. They can form political action committees with separate funds that can do it in limited amounts, they can give money to the parties. But they can't directly give to the candidates. So all that has happened is that now corporations can run, in the weeks before elections, ads explicitly saying whom to vote for. Nothing more and nothing less.

What does the First Amendment have to do with spending money? Money isn't speech.

No, money is not speech. Neither, however, are microphones, but if we were to say that certain politicians couldn't use microphones at their rallies, forcing them to rely only on the sound of their natural voice, they would obviously have a First Amendment case. And it's the same with money. How is the corporation supposed to make its views known without spending some money? A ban on spending corporate money on TV campaign ads is essentially a ban on corporations running campaign ads, period, or for that matter making its views widely known. Ads aren't free, and the ordinary voter isn't checking Exxon's website to see whom it endorses. Moreover, the Court has allowed Congress to regulate campaign contributions, which do have some expressive qualities (expressive here means that a campaign contribution is, among other things, a way of expressing one's views), but do look a lot less like speech than buying an ad stating one's view. So the whole money's-not-speech thing isn't really an argument against this decision or against the Court's campaign finance jurisprudence in general.

But corporations aren't people. Since when have they had constitutional rights?

To answer the question, since the late 1800s. But to be fair, the important question is whether that's right. And I would argue that the more one seriously thinks about it the more one has to say that it is. (By the way, the four Justices in the minority don't actually disagree; they just think there are compelling reasons to regulate corporate expenditures that supersede corporations' rights to make those expenditures.) No, corporations are not people. But they are made up of people. Suppose you ran a business that was in danger of being put out of business by a Walmart moving into town, and you wanted to run an ad in the paper pointing out that Walmarts and the like drain money from the community and encouraging people to write to the zoning committee and tell them to not let Walmart in. For that matter, suppose you run an ad telling voters to vote against Commissioner Brown because he wants to let the Walmart in and destroy local businesses. I think it would surprise you if you were told that your company had no constitutional right to run that ad because it's not human, that the only person with a constitutional right to run that ad is you yourself, and that in fact you could be put in jail if you used corporate money to tell people to vote against Mr. Brown. Of course you could use your own money, but I think it seems odd to say that if you want to use your company's money to save your company from extinction, you have no right to do so because once you dip into corporate money you're no longer human in some sense. Your opinions are still your opinions when you use corporate money to air them - and Exxon's CEO's opinions are still his opinions when he uses corporate money to air them.

If you didn't find that too convincing, consider these hypotheticals. If you believe that corporations really have no speech rights, you believe that ACLU and Planned Parenthood, both corporations, have no rights to advocate about anything. If you think that non-profit corporations have constitutional rights and for-profit ones don't, at which point you lose the benefit of being able to make the "you're not human, then you don't have rights" argument, you still are of the opinion that Congress, if it wanted, could ban any corporation from running ads for or against healthcare reform. To me, the notion that insurers and pharmaceutical companies have no right to try to sway our opinions on legislation that will fundamentally alter their industry is pretty absurd, but that's what you think if you think corporations don't have a right to speak. Finally, let me just note that there's no textual support in the First Amendment itself for the only-people-can-talk argument. Nowhere in the Free Speech Clause can the word 'person' be found. The Free Speech Clause, read literally, bans all regulations of speech without regard to who or what is doing the speaking. So it's not at all obvious that we need to even pretend that corporations are people for the purposes of the First Amendment to find that they have a right to speak.

Still, though, this was really activist. They overturned precedent, and I vaguely understand that they could've avoided reaching the broader constitutional issue in this case. I thought Chief Justice Roberts promised to be like an umpire in his confirmation hearings, just calling balls and strikes. [Sorry if that made the person making this point sound a little retarded, but I can't tell you how many pieces of commentary I've seen complaining that this decision was not very umpire-like.]

Briefly, activism is one of these charges that people throw out when they don't like a result. Yes, they overturned a precedent, a 20 year-old case that was pretty inconsistent with what the Court had said before and since about campaign finance, to the point where every election law professor in the country had been predicting that that case would get thrown out one day for years. Some precedents are wrong. You're supposed to give them some deference, but the Court does make mistakes. Like arguably this decision, for example. I doubt many people on the left would be too upset if Obama appointed some Justices who reversed this decision a few years from now.

A better "this was activist" argument is that there were lots of ways the Court could have said that the Hillary-bashing on-demand movie actually at issue just wasn't covered by the statute. And I can definitely see the argument, for instance, that on-demand movies aren't quite like ads. If you read the statute, though, they would seem to be covered (all you need is a broadcast, cable or satellite communication that CAN - not is, can - be received by 50,000 or more persons), but a Court that didn't want to reach the constitutional question could easily have said that on-demand movies don't count. However, a majority of the Court believed that the law was deeply problematic, and therefore didn't want to take the easy way out, especially when the easy way is probably a misreading of the statute. And I think that's fine. Suppose in the 50s you had a law segregating schools, and the parents who are suing say, look, if you can't find that segregation's unconstitutional, we'd be happy with a decision that said our kid isn't really black. He's only one quarter black and if you look at the statute we think it doesn't cover our son. And the state says, we'd like to keep this kid out of our white school, but if we're going to lose, we'd much rather lose on the grounds that the kid isn't black. They might be right about the technical meaning of the law. But if you're the Supreme Court, you're going to bend over backwards to find that the kid is black by the terms of the law, so that the only way he wins is if you get to the constitutional question, because you want to shoot down that law. You certainly don't want to write a decision that says that Johnny - and only Johnny - can attend the white school. And that's alright. It's alright to say, "we don't want to wait until a 100% black kid sues to kill the law, we'll take the first chance we get to kill this terrible law, even if technically we probably shouldn't even be getting to the step in the analysis where we decide whether to kill the law or not." Courts do this sort of thing all the time and unless you believe that it's wrong across the board, you have no business complaining that this Court did some mildly questionable things to get a crack at killing a law that they thought was blatantly unconstitutional.

But this is just a terrible result. Even if corporations do have rights to talk, their being able to buy our elections is such a bad thing that Congress should be allowed to regulate anyway.

Put that way (and not just put as "I hate this result, so the decision's wrong"), opponents of the decision have a point. In constitutional law land, constitutional rights can be superseded by compelling government interests. And preventing our elections from being bought, or preventing corporations from buying our representatives' votes, certainly sounds compelling. But are corporations going to start buying our elections? No. In fact, I don't think you're going to see many corporate ads at all. And here's why.

A few years ago when, as I mentioned above, the Court said corporations could run ads saying that your Senator is a really bad guy because he did some bad thing and you should write him a note telling him not to do that bad thing, but the ad was run a week before the election and the whole point was really to get voters to vote against the Senator, people were very upset and said that now corporations would buy elections. But what's the last time you ever saw an ad of that sort paid for by a corporation - unless it was a non-profit like Planned Parenthood? Fact is, it barely ever happens. Because who's going to listen to a corporation? If Goldman Sachs comes on your TV telling you to tell your Senator to stop killing baby seals, aren't you going to have a pretty good idea that Goldman Sachs really wants that Senator to lose his election so he can stop fucking with their money? Well of course. When it comes down to it, how many corporations do Americans like enough for their endorsement to not hurt a candidate? Not many. No one in the world is going to listen to what Exxon has to say; everyone's going to assume that whomever Exxon endorses in its ads (that it will never, ever run) must want to help them raise gas prices or destroy the environment. And even a popular corporation, like Apple, couldn't get away with running ads for anyone. Just think of the consequences of Apple running an ad telling people to vote for Obama. I'm not sure that many Republicans would stop using Apple products, but associating your brand with any one candidate is branding suicide. It's like coming out and saying that your corporation's official religion is Southern Baptism. N
ot to mention that if the guy you didn't endorse wins, he's not going to do you many favors. Which is why most big corporations have political action committees that give to both parties, not just their favorite. The bottom line is that if you didn't see corporations running many campaign ads when they had to make them slightly veiled and discreet ("tell your Senator that he sucks at life"), you're not going to see them running ads that really put themselves on the line. Of course, there are corporations that don't need to cultivate their image with the public much because they mostly do business with other businesses, and they might be a little more willing to advertise. And there are corporations run by people who just really want to see a candidate win or lose. But again, corporations have been able to run pseudo-issue ads for several years, and they just haven't. And not because pseudo-issue ads don't work; studies find they're more effective than the "vote for Smith" types of ads. The big difference this will make is that now the unions, and non-profits like Planned Parenthood, will run some ads telling you whom to vote for. And if Planned Parenthood wants to run an ad telling us to vote for Obama because he'll put people on the Court who love abortion rights, I think we're all fine with that. I certainly don't see what great harm it can do.

1 comment:

JoJo said...

This was a good read. I don't know how you feel about RD but he is a baller in my book: http://www.nybooks.com/articles/23678