The Beginning of the End of Citizens United?

 I sent a link to Beverly to this article which stated Citizen United was not so much about corporate personhood. Here is her response, and in addition in a later e-mail Beverly makes this key point (intro amended for readability):

…that no constitutional amendment is necessary in order to nullify Citizens United, because Citizens United actually was decided on the basis of a purported issue of fact that was unsupported by any evidence and that can be refuted by actual clear evidence–and that that’s really the point that the Montana Supreme Court justices were making.

and actually much more….

by Beverly Mann

The Beginning of the End of Citizens United

The article makes the important point that Citizens United and Bellotti, the 1978 opinion that Citizens United uses as its justification, focus mainly on the listeners’ right to hear political speech rather than on the speaker’s right to speak, and so it is not corporate personhood but instead the money-is-speech Supreme Court tenet that is the operative precept in Citizens United. But then the authors claim that, because no listener was a plaintiff challenging the constitutionality of the statute, the Court had no authority to decide the issue on the basis of the supposed interests of listener members of the public. That’s ridiculous, and they themselves effectively refute it. They say:

For their traditional First Amendment balancing, on one side of the scale, courts have categorized the speech as either a kind that communicates an idea, opinion, demand, information relevant to democratic debate, etcetera, or a kind that better fits the category of being merely an instrumentality of transactional conduct. (The speech can also fall in the middle between these two categories). The more communicative and the less transactional, the more weight the courts have recognized on this side of the scale. On the other side of the scale is weighed the amount of harm done by allowing the speech. Speech that merely facilitates the conduct of transactions, such as fraud, conspiracy, insider trading tips, pimping and so forth may properly be criminalized and regulated without much regard for the fact that the means for carrying out the transactions may be entirely speech. Money in politics falls within the category of transactional speech, and it also causes severe harm to the democratic form of government. It may, therefore, be regulated and criminalized.

One reason why speech that communicates political argument, ideas, opinions, information relevant to democratic debate, is more protected under the First Amendment than commercial or transactional speech is that the public has a stronger interest in hearing, and therefore a stronger right to hear, political argument, ideas, information, etc., than it does transactional speech. A big part of the balancing in First Amendment speech cases concerns the interest of the listener.

Also, their statement that “[m]oney in politics falls within the category of transactional speech” is clearly wrong. It seems to me that money in politics isn’t speech at all. But it’s certainly not transactional speech. Transactional speech is the speech intended to induce the payment of money—speech intended to induce the purchase, or whatever. It’s not the payment of the money.

It’s also wrong to conclude that corporate personhood played no role at all in the outcome of Citizens United. The majority talked about the First Amendment right of corporations, unions, nonprofits, to have their message heard through mass media—and that therefore they themselves (the corporations, unions , nonprofits), like listeners of speech, have a First Amendment right to have their message heard only because they are deemed “persons.” The First Amendment gives rights only to persons or “persons”. So in this case, it was both the supposed rights of the human listeners and, separately, the supposed rights of the speaker “persons” that the Court found that the statute violated. But either one alone would have been enough, in the opinion of the Court’s bare majority, in this case.

Then there’s this paragraph, which makes no sense at all:

First, the Roberts 5 stepped outside the court’s constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court’s own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976.

Huh? Of course the Court has the constitutional authority to take up and decide cases concerning election integrity. Yes, Article I, Sections 4 and 5, specifically consign to the elected Congress both regulation and judging of the manner of holding elections. Other sections of Article I, and other parts of the Constitution, consign to Congress the writing of other types of statutes. And under Marbury v. Madison, the Court has the authority to decide the constitutionality of those statutes.
They are right that the court improperly “overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation.” In the Montana case discussed in the article, in which the Montana Supreme Court on Dec. 31 issued an opinion upholding the constitutionality of a longtime Montana statute limiting campaign contributions and (I believe) campaign expenditures supposedly independent of specific candidates’ campaigns, despite Citizens United, there was specific, strong evidence both of actual corruption before the enactment of the legislation, and of a strong public belief that unlimited contributions and independent expenditures by corporate interests (or by very wealthy individuals) undermines the integrity of the legislative process.

The Montana Supreme Court opinion details this. In Citizens United, the majority said they concluded that neither of these existed. But in light of the detailed examples of that type of corruption, and the statement of six of the seven Montana Supreme Court justices that they themselves believe that unlimited contributions and independent expenditures directly corrupts the legislative process, it will be a lot of fun to watch the Supreme Court majority reiterate that they “find” that there is no such corruption and no public perception that that kind of money undermines the integrity of the legislative process.

The Citizens United majority’s purported finding was intended as a finding of fact, not a statement of law—a very big difference, and the reason that, as you know, Dan, I disagree with the legal pundits who have said they expect that the Supreme Court will overrule the Montana Supreme Court.
In Citizens United, the Supreme Court simply decided on its own to address this issue and the constitutionality of the part of the McCain-Feingold law that this supposed finding of fact concerned. There was no evidentiary hearing in the trial court concerning either actual corruption or the public perception of it, related to unlimited campaign contributions and unlimited independent campaign expenditures by corporations. The Court’s majority simply pronounced their finding of fact based upon nothing more than their personal views, their own ideology, as if ideology and the personal opinions of five justices is evidence.

In my opinion, under the ruling in Citizens United, which actually is a fact-based ruling rather than a categorical statement of constitutional law, Congress could re-enact a statute similar to that part of McCain-Feingold, and as the law stands now, under Citizens United, defend its constitutionality in court. When the statute’s constitutionality is challenged, the government, in defending in the lawsuit, could parade huge numbers of people—some of them very high-profile. NY Times columnist, Thomas Friedman, for example, has called the system of campaign contributions legalized bribery authorized by the Supreme Court), some of them just ordinary folks from, say, Montana—to refute the unsupported , out-of-the-blue, findings of fact in Citizens United.

Unless, of course, the Supreme Court, in, say, the Montana case suddenly changes the stated justification for its Citizens United ruling, from a supposedly fact-based one to a categorical ruling of law that the First Amendment bars any such statutory restrictions irrespective of facts, and therefore overtly removes this area of First Amendment law from the usual balancing-of-interests analysis. Most people think that’s what they did in Citizens United. But it’s not. The Montana Supreme Court justices recognized this, and it was the basis for their ruling.

And once the Montana case gets to the Supreme Court, and gets the national publicity it will get if (almost certainly, when) the Supreme Court agrees to hear it, the public will learn this. I think the Court will be treading quite close to losing the confidence of a vast majority of the public if it reiterates its own claimed finding of fact from Citizens United, in the face of the extensive evidence in that case (again, including the view of six of the seven Montana Supreme Court justices) that vast majorities of the public do, as a matter of fact, perceive that unlimited campaign contributions and veneer-thinly-independent electioneering expenditures compromise the integrity of the legislative system. And I think the justices will recognize that.

Which will leave them with the choice between categorically rewriting a significant part of First Amendment law, which they superficially nodded to in Citizens United and circumvented there via their spontaneous finding of fact, or instead once again overtly supersede clear fact with their own Mad Hatter view of it. Sit tight.

Beverly