Thursday, January 28, 2010

A Quick Review of Citizens United

By now you’ve heard about the recent Supreme Court decision in Citizens United v. FEC.  If you watched the State of the Union Address, you heard President Obama call out the Court for it’s poor jurisprudence.  There are two main reasons why I think Citizens United was, in fact, poor jurisprudence.

First, a Little Background
In 1976, with Buckley v. Valeo, the Supreme Court established that the spending of money to influence elections constitutes symbolic speech.  Consequently, if campaign spending is speech, it follows that campaign spending may be protected by the First Amendment under certain circumstances.  In some ways, the Buckley decision sits at the center of the current mistake.

After Buckley, the Court and Congress created a series of other mile markers along the campaign finance reform road.  Two germane bits of action stand out:  the 1990 Supreme Court decision in Austin v. Michigan Chamber of Commerce, and the Bipartisan Campaign Reform Act of 2002 (BCRA), also known as the McCain-Feingold Act.  Did you notice when campaign ads on TV started ending with, “I’m So-And-So, and I approved this ad?”  Well, that was the most visible effect of BCRA.

BCRA accomplished several things.  The provisions important to this discussion prohibited corporations from buying campaign ads directly endorsing a candidate, in proximity to a primary or election.  Legally, this posed little problem in part because the Austin decision established that government may regulate the speech of corporations differently than the speech of political associations or individual citizens.

The Court’s New Blunder

In Citizens United, the Court majority established legislation may limit direct contributions by corporations to candidates, but may not limit broadcast election communications.  Effectively, this overturns Austin, and strikes down portions of BCRA.

First, without expressly stating it this way, the Court has now established that corporations possess the same full constitutional protections as individuals and associations of citizens.  In his majority opinion, Justice Kennedy wrote, “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.”  His argument avoids any distinction between me as a speaker, and General Electric Corp. as a speaker.  I’m confident that a high school student could spot at least three significant differences between myself and GE.  (Here’s one for free:  “GE” can’t speak for the entire company; what about those employees, officers, or Board members who disagree with the message GE broadcasts?)  Justice Kennedy closes the Court’s opinion by quoting himself from an earlier case:
Citizens must be free to use new forms, and new forums, for the expression of ideas.  The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.
Yes, the civic discourse belongs to the people.  And now, corporations are people too, without any discussion of the matter.

Second, even if the First Amendment covers corporations and individuals equally, that merely means the legislation must meet strict scrutiny (the strictest level of judicial review) in order to properly restrict a corporation’s speech.  That the reversed portions of McCain-Feingold were narrowly tailored to achieve a compelling government interest possesses obvious strong arguments.  (For a good discussion of how restricting corporate electioneering speech meets strict scrutiny, please read Justice Thurgood Marshall’s excellent majority opinion in the now-defunct Austin decision.)  Which is to say, even if you follow Justice Kennedy’s assumption of the previous paragraph, strict scrutiny should still allow BCRA to remain intact.

I again refer you to the nearest high school student.  I bet he or she can come up with a few reasons why the government might have a compelling reason to limit corporations’ ability to produce and broadcast campaign-related advertisements.

Chief Justice Roberts’s concurring opinion in Citizens United is, to me, the most interesting, and best reasoned part of the case.  Though I dislike the majority opinion, I must admit that Roberts rightfully points out a significant logical problem with the dissenting opinion.  He also comes closest to discussing the question of whether a corporation should stand equally to a citizen under the First Amendment.  I would love to have read a more thorough examination of this fundamental question.  His floodgate argument regarding newspaper opinion pieces also intrigues me, and though I incline toward disagreeing, I would also like to read a fuller discussion of this.

Though Kennedy’s majority opinion didn’t go so far as Justice Thomas’s laughably bad concurring/dissenting opinion (which called for removing even the reporting requirements of BCRA, so no one would ever have to know who sponsored the swift boat ads or how much money Enron spent on elections), it failed to adequately dispute Thurgood Marshall’s arguments from Austin.  But it’s worst failing was in simply assuming, without proper exploration, that corporations deserve all the same speech protections that you and I deserve.

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