Supreme Court faces pressure to reconsider Citizens United
Lifted from an e-mail by Beverly Mann in response to an inquiry of mine on a Washington Post article:
Hi Dan. The key paragraphs in a Washington Post article earlier this week, called Supreme Court faces pressure to reconsider Citizens United ruling say:
The Supreme Court has already blocked the Montana decision, and the justices may simply set their counterparts in Helena straight by summarily reversing the finding. But pressure is being applied — by members of Congress and nearly half the states, not to mention Justices Ruth Bader Ginsburg and Stephen G. Breyer — to at least let Montana make its argument.
The Montana Supreme Court acknowledged a conflict when it voted 5 to 2 to uphold the state law, created by voters in 1912 to combat the power of the so-called Copper Kings who controlled state politics. It said the state’s characteristics, including a dependence on agriculture and mining and low campaign costs, made it “especially vulnerable” to corporate control.
Those urging the court to grant a full hearing of the Montana case take aim at the most important finding of Citizens United. That was the declaration in Justice Anthony M. Kennedy’s majority opinion that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
“That cannot be so,” the new bipartisan team of Sens. John McCain (R-Ariz.) and Sheldon Whitehouse (D-R.I.) told the court. “Whether independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system; it is a factual question, not a legal syllogism.”
The court under Chief Justice John G. Roberts Jr. has incrementally undermined McCain’s landmark campaign finance act by saying it doesn’t meet First Amendment requirements. McCain has in turn been dismissive of a court — without a single member who has ever run for public office — that he says is hopelessly naive about how campaign finance affects the political process.
The most stunning part of the Citizens United opinion was that declaration of fact was made out-of-the-blue and that most people recognize is plainly false. I wrote about this a couple of times on AB, including last January, shortly after the Montana Supreme Court issued its opinion.
I think that, although the rightwing majority would love to just summarily reverse the Montana Supreme Court on the basis of that declaration of purported fact in Citizens United, they’re under enough pressure now to not do that; the dissents from any such opinion would be devastatingly scathing and would get a lot of attention. I think they’ll agree to hear the case, and will schedule the oral argument for after the election. I think that, when they do decide the case, the wingnut majority probably will say that, whether or not “independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system,” the First Amendment interest in “free speech” outweighs it.
But, who knows? Another possibility is that they’ll say that their opinion in Citizens United stated that it was based on the presumption of transparency about who is actually funding these Super PACs, and on the basis that, supposedly, these Super PACs do operate independently of the candidates’ campaigns, and that unless both of these presumptions actually are true, laws like Montana’s are constitutional.
Beverly
And Beverly added later:
In my opinion, the only newsworthy part is the amicus brief from McCain and Whitehouse, because of MCain’s participation and because these two senators are saying that as a matter of fact the Citizens United opinion’s declaration of fact is erroneous, and that they, not the justices, have the actual facts. That’s the argument made by Montana’s attorney general, but having two senators say outright that in their experience, the Supreme Court’s statement of fact is flatly wrong is a big deal. But I don’t have any more insight into what will happen than what I wrote in the email and what’s in the Washington Post article.
I think the Subprime Court decison stacks the deck. The corruption angle is just a Hey! Look Over There obfuscation of the real issue. Same as always.
Beverly,
Dissents don’t become law…
Here is another view I thought interesting: http://prawfsblawg.blogs.com/prawfsblawg/2012/05/why-the-ire-over-citizens-united.html
Key paragraph:
Why is so much ire aimed directly and uniquely at Citizens United, out of the entire body of campaign finance law? Why is this case perceived as the alpha and omega of bad law on the subject? Yes, Citizens United overturned Austin. But Austin was 20 years at this point, so it was hardly Justice Brandeis in Erie overturning Swift. And Austin itself was arguably the First Amendment anomaly–the one and (at that point) only time the Court had accepted the equality rationale for regulating campaign spending (although it was equality in the guise of corruption). Austin could not be reconciled with Bellotti v. Bank of Boston in 1980, which invalidated a ban on corporate expenditures in an issue election, or, more fundamentally, with Buckley v. Valeo in 1976. So why pick on Citizens rather than these earlier precedents, especially Buckley, which is the case that introduced the fundamental idea that expending money for expression is First-Amendment protected?
I thought that was a very good question. Why is the left so nuts about CU?
Islam will change
Buff
because corporate money is destroying democracy?
personally, I dont see what “the appearance of corruption” has to do with the Constitution, and I am sure corporate money will corrupt the government without the help of Citizens United
but on the other hand the Supremes declared in Gore v Bush that the states could regulate elections in their own way… and you’d think they’d be bit embarrassed to turn around and say, except when we don’t like the result.
bottom line for me is, with a corrupt Supreme Court, and a President who will sign anything if it’s politically expedient, and a Congress that is as fully bought and paid for as a Nascar driver… does it really matter?
(the answer is, yes. we have to fight one fight at a time. maybe the tide will turn.)
The crux of the matter is the concept that a corporation enjoys first amendment protection for what it has to say on any issue. Some how the fact that only some limited number of individuals may control a corporation’s actions seems lost from that concept. That small group of individuals is combining the wealth of many others and those others are hidden from view. How that qulaifies as the equivalent of an individual and the right to freedom of speech is still a mystery to a great many people.
Citizens United isn’t “law”. It is the overturning of law. If there is lots of bad campaign finance law, then there is nothing unique about bad campaign finance law. In the overturning of campaign finance law, Citizens United may be uniquely bad. A Court that claims to give great deference to the Congress overturned law and its own precedents in order to rule as it did.
All of which means that the author of the “interesting view” is being mighty disingenuous.
Well, it has always seemed to me that the conflation of money and speech is illogical. It treats speech as an economic good (i. e., scarce). The point of freedom of speech, IMO, is that everybody has it, and can exercise it. Treating money as speech means that the exercise of free speech by one person diminishes the free speech of another. (Yes, there is a measure of interference, anyway, as in shouting down someone else, but it pales in comparison with the influence of money.)
That point may not matter much, because of freedom of the press. The press has always been an economic good.
Maybe the proper order is that the Supremes are treating speech as money.
For me, it all comes down to a corruption of the basic premise which all constitutional law decisions need to make peace with: One voice, one vote.
Speech is money, money is speech, corporations are people, etc, they all fail out of the gate of: One voice, One vote.
Jack-The New York Tines is a corporation. Do they have the right to publish editorials? AFSCME is in essence a corporation. Do they have the right to fund political candidates? MSNBC is a corporation. Do they have a right to express political opinions?
DB and others,
You keep making the grossly illogical assumption, never once in the history of the US has it occurred, that everyone has an equal voice. That has never happened. The NYT Corporation has more ‘voice’ than I do. Same with Fox news. Or Megan Fox, or Tom Cruise, or George Soros or the Koch brothers. Walter Cronkite practically made LBJ leave office with his ‘voice’.
We all have the same right to freedom of speech as anyone else. The idea that I should have equality with Murdoch on the ability to disemminate that speech, and it be enforced by law, is ludicrous. CU allows groups of people to come togther and make their speech heard to a much wider audience than they could obtain on the street corner. Just like the LA Times or ABC. All corporations.
little john is correct. His list of Corporations that would have their speech curtailed is long and would be practically infinite.
What citizens united did was stop congress from abridging peoples free speech rights. Right out of the 1st Amendment. I’m not sure why the left is so up in arms about this. They are just as free to come togetehr and form a company and pitch there speech. Or is this just another example of the left wanting to shut other people up?
Why is it anytime we see people trying to constrain peoples free speech, interrupt speakers, and otherwise try to stop speech its always lefties? Always.
Islam will change
buff
no, it’s not always lefties.
even so, i tend to agree with you and little john, at least so far as the arguments presented here.
money is not speech, and corporations are not persons, but if you are going to make it illegal for any combination of persons to spend their money to put their political opinions before the voters, you are going to have a hard time justifying it.
since i think that the current corporate funding of propaganda is bad for democracy, the best “precedent” i can come up with is the “free speech does not entitle you to shout ‘fire’ in a crowded theater” which, sadly, was used by the right to stifle anti-war speech during the War To Save Democracy. Which makes it a dangerous precedent. Nevertheless, I think the Supremes could find that the Power of corporate money in elections is simply too great to not impose limits… the future of the country might be at stake.
this could be a little similar to the war against the states… probably not constitutional, but absolutely necessary to save the country.
the constitutional argument might find that it IS possible to regulate corporations, as they are creatures of the government.
this would of course leave the “owners” free to come together and pitch their speech… but without using corporate money.
and the Rush Limbaugh show, and others, would of course continue to shape the American “mind.” No need to actually buy the Congressman outright.
Little John that is why Freedom of the Press is explicitly laid out in the Constitution. You would think Strict Constructionists would understand the difference.
Plus there is nothing that mandates that newspapers operate as corporations and historically many, perhaps most did not, but instead were sole proprietorships or partnerships voicing the opinion of the Publisher/Editor or the Editorial Board. The fact that tax and other law has developed in a way that forced most newspapers into a corporate structure has little to nothing to do with the underlying issue, the NYT does not draw its free speech rights from the fact that it is owned by the NYT Corporation.
Your argument is a non sequitur.
And little john distracts our attention from the primary issue, which is the ability to regulate to what extent political speech can be financially supported by corporate groups. Such groups have always been free to speak up, but not free to overwhlem the conversation. And that is an especially important distinction given that so much of what is presented as a ppoint of view or an ideology is in fact an effort to propagandize and obscure reality.
In addition, when a business corporation or a union organization publish political speech we all have a reasonable knowledge of who is speaking. Such organizations publicize their ownership and/or membership. Super PACs more often seem to be organized with the intent of cloaking the individuals behind their messages.
little john distracts our attention from the primary issue, which is the ability to regulate to what extent political speech can be financially supported by corporate groups. Such groups have always been free to speak up, but not free to overwhlem the conversation. And that is an especially important distinction given that so much of what is presented as a ppoint of view or an ideology is in fact an effort to propagandize and obscure reality.
In addition, when a business corporation or a union organization publish political speech we all have a reasonable knowledge of who is speaking. Such organizations publicize their ownership and/or membership. Super PACs more often seem to be organized with the intent of cloaking the individuals behind their messages.
“the constitutional argument might find that it IS possible to regulate corporations, as they are creatures of the government.”
If a group of individuals can obtain from the government a protection from any liabililty brought ab out by the collective behavior of that group, acting as a group, by forming a corporation then that corporation should be subject to what ever other regulations the government may find reasonable and necessary through the legislative process. There is a serious conflict between limiting the liability of indivduals who may make up the corporation and limitless behavior of that corporation in its interactions within the society within which it seeks those individual limitations of liability.
Bruce if I understand you correctly you are supportive of Freedom of the Press but not Freedom of Speech? Or is it just the political speech of corporations that you would like to censor? Do you think AFSCME should have their political speech censored as well? How about the NEA? AARP? The AMA?
little john
i understand that you were addressing Bruce. Nevertheless it seems to me you miss the point that Corporate money is overwhelming the political system. Those other groups never had the power to do that.
None of our “rights” is absolute. That can be dangerous to us. But taking them as absolute can also be dangerous. We end up with a law that arguable reflects the best judgement of the congress, the president, and the Supreme Court. The fact that their judgement is not free of dangerous error is just something we live with.
But that means I can’t take your absolutist position that “free speech” trumps all other considerations. At the end of the day the country will live or die according to the common sense of the citizens. Unfortunately that common sense can be destroyed utterly by a clever enough propaganda campaign. We already have enough trouble with Rush Limbaugh and ilk. Adding to that the overwhelming power of corporate money to dominate politics, and you are looking at the death of meaningful democracy.
Certainly something that justifies more serious thinking than those people whose common sense has already been corrupted are giving it.
I am not sold on the idea that corporate money is overwhelming the political system but I think that may be an ancillary argument we can have later. It just seems to me that a government bent on invoking eliminationist policies can be much more of a threat to citizens, and democracy, than corporations. The anti-free speech argument reminds me of, “Women voting? That’ll destroy America!” “Blacks don’t have the mental capacity to participate in democracy.” Etc.
Little John I was not making general claims but instead responding to your attempt to use the corporate owned NYT to argue for the free speech claims of all corporations. Emphasis on ‘corporations’. To twist that into an attack on Freedom of Speech generally is just to set up and burn a strawman on your non sequitur.
Plus the argument is strained. Corporations can and always have had the ability to speak. They can buy full paged advertisements, publish their own book series or magazines, or spend millions of dollars hiring people to speak on their behalf. Both in house, which is why probably every large corporation has a PR Department, and externally via lobbyists. In light of the last 100 or so years of history the idea that corporations have been effectively bound and gagged, poor helpless mute giants is beyond risible.
The real issues in play are one: is money ‘speech’ in the sense meant by the authors of the First Amendment; and two: are corporate ‘persons’ in the class of persons for whom the Bill of Rights and subsequent amendments were intended for. As an example corporations do not have the right to vote, so in practice have political disabilities other ‘citizens’ don’t. On the other hand in 1789 female citizens couldn’t vote either (or in very view jurisdictions/circumstances) but few would not argue that they were fully covered by all provisions of the First Amendment. So I am not saying there is nothing to discuss here.
All the more reason not to reduce it in the way you did. So no I will not conclude that you “understand” me “correctly” or even that you had any intent of trying to do so.
Oh Buff,
No one is saying that there was a time in history that everyone was perfectly equal within the social structure, government or otherwise. You know no one is saying that.
The one voice, one vote occured to someone along the way of writing up the structure of our government.
As Bruce noted, coporations have many ways to be heard. That is not the issue. The issue is clear, do corps have a right to direct voting? Of course, it would mean finding accumulated money delievered to or in benefit of a candidate as a form of voting.
little john
but what will you think when the corporations ARE the government?
for what it’s worth i tend to agree with you about free speech, but when the other team in the sixth grade football league shows up with a player that weighs 240 lbs and shaves, i would not really care about that fact that he really is in the sixth grade and “has a right to play.”
All this debate over free speech and nobody acknowledges that in the main it’s actually a very vaulable product. Free speech that is actually sold at rates amounting to thousands of dollars a second ( or word if you prefer using a formulation the founders would have understood ) ought to at least invoke some snese of cognitive dissonance if not suspicion of outright lying. The owners/producers of this free speech are often sponsors of political messaging in their own interest, again rarely acknowledged. That possibility also enables certain players with interests in media ( Oh hi Mr. Murdoch ) to buy their free speech at what amount to wholesale or more realistically raw producer rates.
If political campaigns were limited to print media, with no broadcast or internet media allowed it would be impossible to deploy the billions deployed by the Kochs and their friends. Only broadcast media and the intertubes contain the possibility of consuming vast resources of corruption. The problem is compounded by the role the media corporations play – their self interest and the vast revenues and profits they receive from the status quo makes it difficult to identify a useful forum for examining the issue.
Consider the way the political advertising season has been expanded over the last 30-40 years. The relevant players have managed to escape the worst ravages of the recession by enabling a year in year out round the calendar schedule for political messaging. Who cares if you can’t get new ads for cars or housing developments as long as Senator Moneybags is running up a nice monthly balance? Or his opponents The Campaign For America’s Distraction?
am soc
cognitive dissonance is harder to come by than you might suppose.
the free in free speech means free from government suppression. everyone knows it costs money to get your political message before the public.
i agree with you about the evils of corporate advertising, but they did okay for themselves even before radio was invented.
the problem with corporate “speech” nowadays it that it isn’t even a David v Goliath problem. it’s David versus the Wehrmacht.
Bruce I wasn’t real sure what you were arguning. I wqs just trying to make a very simplistic point about freedom of speech. You’re so right that corporation haven’t been bound and gagged but this is the first step. Then it will be unions, public advocacy groups, etc. I am glad we agree that there is something to discuss and I can understand most of the criticisms up thread. But silencing opinion, no matter where it comes from, is dangerous.
Bruce I wasn’t real sure what you were arguning. I wqs just trying to make a very simplistic point about freedom of speech. You’re so right that corporation haven’t been bound and gagged but this is the first step. Then it will be unions, public advocacy groups, etc. I am glad we agree that there is something to discuss and I can understand most of the criticisms up thread. But silencing opinion, no matter where it comes from, is dangerous.
Bruce I wasn’t real sure what you were arguning. I wqs just trying to make a very simplistic point about freedom of speech. You’re so right that corporation haven’t been bound and gagged but this is the first step. Then it will be unions, public advocacy groups, etc. I am glad we agree that there is something to discuss and I can understand most of the criticisms up thread. But silencing opinion, no matter where it comes from, is dangerous.
little john
that’s all well and good. but if you add into your equation that corporate money “free speech” overwhelms all other free speech,
and that there is pretty good evidence that voters do not “think” about what they hear, but fall for a clever lie every time,
and that the direction America seems to be going it, if it has not already arrived, is government by the corporations for the corporations, but not of the corporations
and that McCain Feingold does not silence their opinion (lies?), but merely reduces its volume marginally…
you might have the beginning of seeing the problem.