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Last Thought on Citizens United

January 25th, 2010 · 17 Comments

At the risk of rambling on redundantly, I want to stress one thing about my attitude toward the Citizens United case: We’ve been focusing on this question of “corporate personhood” because that’s the legal frame we’ve been handed, but it’s pretty much irrelevant to my thinking about this question. The root conviction here is just that when someone has produced an unflattering political documentary about a sitting senator who is seeking higher office, and the government seeks to prohibit it from airing just because the person to whom it pertains is seeking political office, that cannot possibly be compatible with the First Amendment. Who produced or funded it are beside the point.  Now, if you tell me that with such-and-such a fact pattern, given a framework of other legal decisions, this result requires the court to treat corporations as bearers of First Amendment rights, so be it. If you tell me the courts have an alternative means of reaching the same result while denying that corporations have such rights, fantastic. I have no real independent commitment to a position either way on this question, except insofar as it appears to be necessary to avoid carving a huge loophole in protections for political speech.

If we just work from the text of the First Amendment, it seems perfectly possible to go another route, because unlike (say) the Fourth Amendment, it doesn’t technically grant speech and press rights to persons; it just prohibits a category of government action: “Congress shall make no law…”  It immunizes an activity, not a class of actors.  Again, I’m happy to take the path of least resistance here.  My understanding is that “corporate personhood” for constitutional purposes is not a novel result, and indeed, that all nine Supreme Court justices agreed that First Amendment rights were implicated here. The dissenters just thought campaign finance law served a “compelling interest” that justified overriding the right to free speech. But if people are unhappy with that legal concept, I’d be delighted to take the alternate path to the same outcome.

Tags: Law



17 responses so far ↓

  • 1 Daniel // Jan 25, 2010 at 12:34 pm

    I think it’s important to point out that this isn’t just about what’s “constitutional” in the sense of “happens to be included in the United States Constitution.” It’s also about “constitutional” as in “having a liberal constitutional form of government.” Basically the point is that the political process shouldn’t, at some basic level, be dictating the terms for participating in the political process, since this is the process self-nullifying and probably ultimately self-destructing. A government/legislature that happens to be in power at the moment shouldn’t be trying to affect how government/legislatures come into being.

    That’s why this difference between speakers/speech is so important. I think a lot of (mostly progressive) framing of this issue has pictured the first amendment’s freedom of speech as a sort of privilege we as citizens snuck into the founding document–alternatively it could be, “and the government shall give everyone pizza parties on tuesdays…” It seems to me that free speech, while a nice thing for people to enjoy, is first and foremost a structural issue for the institutionalization of a society, like checks and balances on the three branches of government.

  • 2 Joseph Biehl // Jan 25, 2010 at 4:30 pm

    I quite agree that the ‘corporate personhood’ debate is quite beside the point here (and so I agree with the decision in terms of Constitutionality), and think those clamoring for some ‘Constitutional amendment banning corporate personhood’ are barking up the wrong tree. But the question for those who are seriously concerned about the possible consequences of this decision (as Stevens was in his dissent) is just what tree is available. Would the move to purely public financing be an infringement on speech, individual no less than corporate? In the manner in which you frame the issue here, arguably so.

    Prima facie, the problem seems fundamental in nature: how would one amend the constitution in this case (in order to protect ‘ground-up democratic discourse’) without loosening some thread that threatens to unravel the whole fabric?

  • 3 Noah Yetter // Jan 25, 2010 at 4:57 pm

    Where do the words “compelling interest” appear in the Constitution? The mind continually boggles at how SCOTUS justices make excuses for discarding the Constitution’s plain and obvious language. “No law” means NO LAW. No “compelling interest,” no “community standards,” no “clear and present danger,” or any of that rot. NO. LAW.

  • 4 Julian Sanchez // Jan 25, 2010 at 6:02 pm

    Noah- Well, for better or worse, that ship has sailed. And I think it’s a bigger bullet than we need to bite to defend this particular ruling.

  • 5 Julian Sanchez // Jan 25, 2010 at 6:06 pm

    Joseph – I have no very firm opinion about public financing, but I think it presents much less serious constitutional issues. The government routinely spends general funds to promulgate messages that individual citizens may disagree with, but with some very specific exceptions (e.g. promotion of a particular religious faith), this is not seen as a First Amendment issue, even if it might be objectionable on other grounds.

  • 6 Joseph Biehl // Jan 25, 2010 at 7:31 pm

    Julian, I appreciate that, but my concern was something different (and stems from an incomplete grasp of just what purely public financing of electoral campaigns actually amounts to): in a purely public system, could Citizen’s United show their film? If money contributions are considered a form of speech, is the preclusion of private contributions and infringement?

  • 7 Daniel // Jan 25, 2010 at 8:17 pm

    The catch is in “purely.”

  • 8 DivisionByZero // Jan 26, 2010 at 9:00 am

    While I agree that first principles are sufficient to justify over-ruling the CU vs. FEC case is it really necessary to throw out all campaign finance reform? Obviously the justices argue that it does in their decision but I’m not convinced. The reasoning seems contrived in order to achieve the result of overturning campaign finance reform rather than resolving the legal issues in front of them. So much for activist judges only being progressives. Apparently conservatives want in on the action, too.

  • 9 Larry // Jan 26, 2010 at 4:45 pm

    I would like to see some comments on the view that the decision gives foreign-owned corporations the opportunity to influence US elections.

  • 10 Quote Of The Day at Hispanic Pundit // Jan 27, 2010 at 3:35 am

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  • 11 Julian Sanchez // Jan 27, 2010 at 9:36 am

    I don’t think that’s clear yet, but really, so what? Let them. The more inputs the better.

  • 12 Larry // Jan 27, 2010 at 5:36 pm

    My impression is that the concern is based on foreign corporations controlled by foreign governments whose interests are not aligned with those of the United States having this avenue to influence things here.

    In this case, I don’t believe all inputs are equal, since we are talking about rights of US citizens under our Constitution.

    As far as it not being clear yet, what would prevent it with the current state of play?

    I don’t pretend to know enough to say if this is a real problem or not, but I find it troubling and would like to read more about it.

  • 13 jill starr // Jan 27, 2010 at 8:11 pm

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  • 14 David Nieporent // Jan 27, 2010 at 9:25 pm

    Julian, I appreciate that, but my concern was something different (and stems from an incomplete grasp of just what purely public financing of electoral campaigns actually amounts to): in a purely public system, could Citizen’s United show their film? If money contributions are considered a form of speech, is the preclusion of private contributions and infringement?

    Despite all the hysterical handwringing from the usual suspects, Citizens United was not about “contributions” at all, so whether we have public financing or not wouldn’t change the fact that Citizens United could air their film. The case was solely about independent expenditures, not contributions.

  • 15 Joseph Biehl // Jan 28, 2010 at 4:00 pm

    Got it, David, thanks. I realized the decision wasn’t about contributions but I conflated the two in my worry here.

  • 16 David T // Jan 30, 2010 at 3:33 pm

    Corporate personhood may be irrelevant to the First Amendment. But if the question arises as to whether to apply *Citizens United* to the states, it is hard to see how the issue can be irrelevant, since presumably this can only be done via the Fourteenth Amendment which forbids any state from denying any *person* life, liberty, or property without due process of law…

  • 17 UserGoogol // Jan 30, 2010 at 11:19 pm

    Noah Yetter: The phrase “free speech” itself has a hell of a lot of ambiguity in it. If it merely prevented Congress from passing laws restricting the ability of people to engage in the spoken word, it would be the most useless thing ever, so it is not meant to be taken literally but to refer to an abstract concept. But when you have an abstract idea, you have to ask how far the idea goes.

    In a sense, every action is speech, because every action conveys some of the ideas of the actor. It’s a question of what sort of non-speech components an action can have before it stops being purely speech and you can start regulating those actions as a consequence of those other consequences.