Why we all want Citizens United to remain law.
Originally posted to Facebook; cross-posted to Dreamwidth.
For those who haven't heard, the Montana Supreme Court in Western Tradition Partnership v. Bullock has rejected the idea that corporations had the right to fund campaigns, claiming that there were special circumstances in Montana that meant the famed Citizens United v. FEC didn't apply. As the dissent pointed out, what they were really saying was that they just didn't like the Supreme Court's ruling and were choosing to ignore it. To the surprise of no one, the Supreme Court has picked up the gauntlet and taken on an appeal of the decision.
But this is a good chance to discuss the original case, because I hear a lot of complaint about Citizens United by people who don't seem to know much about it beyond "it allows corporations and super-PACs to flood the airwaves with political ads." Which is true, but only in the same sense that Miranda v. Arizona allows people to commit crimes and then flaunt them to the police without consequence. That is to say, it's an unfortunate side-effect, and it could do with some tweaking to prevent abuse, but given the alternative, we're much better off for it.
Let me ask you some questions:
1) Should a pro-choice group be able to detail an incumbent's record on abortion or contraception on their website and push for the readers to vote him out?
2) Should a teacher's union be able to compare the various candidates' past funding for education on display in their newsletter and endorse the one with the best record?
3) Should the NAACP be able to to release ads in the middle of primary season opposing a candidate it believes is racist?
4) Should MoveOn.org be able to do anything it does?
Did you say "yes" to any of those? To all of those? Then you're supporting Citizens United, or at least the primary point of it, because none of those were technically legal until the Court made its ruling.
Fact: It's the last question that is particularly on point for Citizens United, because that's what we were dealing with: a non-profit organization, funded by individual contributions, vocally opposing Hillary Clinton's run for president. There was no for-profit corporation. There was no super PAC. The FEC restriction that the Court struck down was not limited to either. It couldn't be, because there is no legal line to draw between a non-profit organization and a for-profit corporation, or between either and a super-PAC. Regardless, the entity has a status independent of any of its members. If you can silence any such entity, you can silence all.
(The opinion itself noted other situations that the restriction in question would silence if universally enforced: "The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech.")
Fact: Citizens United did not decide that corporations had speech rights, or that advertising counted as speech. Both had been true since at least 1977 with First National Bank of Boston v. Bellotti. The case merely elaborated that advertising funding could come from the corporation's general treasury instead of a smaller, restricted political fund, that the ads could explicitly endorse or oppose a particular candidate, and that they could be within the period of time previously restricted. It then got a lot of publicity, largely because Obama critiqued it in his State of the Union speech, but also because people perceive it as the sole cause of the super-PAC (more on that in a minute).
Fact: the ACLU came down on the side of Citizens United in their own amicus brief, which you can read on their website. This was not only because it was the correct result, but because the ACLU has a good sense of self-preservation (as the opinion noted, the ACLU could also be restricted from supporting or opposing candidates otherwise).
Just to be even clearer about the consequences, let's consider what happens with the opposite result: organizations have no free speech rights, at least not in advertising. Congress can silence them all. Okay, so that means individuals get all the power, right? Well, in a sense, yes. Every individual can spend money on their own ad. But what if an individual can't afford an ad? No problem, the traditional solution to that is to form an organization that will pool the money and... oops. Nope, that organization doesn't have the right to create an ad anymore. You spend your own money and that's it.
So now who's the loudest voice? The 1%. Bill Gates, Warren Buffett, the Koch brothers, or the Walton family can spend millions on advertising without having to involve a corporation or organization. The richest candidates are close behind, with Romney, Schwarzenegger, and Kerry filling the airwaves using their personal funds. Meanwhile, candidates with little personal funds and no rich individual backers are dead in the water, unable to afford a single ad on any medium with any weight. And grass roots movements can't support candidates effectively. But with Citizens United on the books, the 99% can organize against and overpower the 1%.
So, 5) Should individuals be able to organize their funds such that they can afford to produce a political ad, when they would be unable to afford to do so individually? If so, you want Citizens United on the books.
With all that said: Super-PACs exist because of a separate ruling by the DC Circuit in SpeechNOW.org v. FEC, which ruled that organizations independent of any candidate could not have upper limits on acceptance of contributions. Although the court claimed to be applying the intent of Citizens United, I believe that claim to be inaccurate, and to the extent that the Supreme Court did have such an intent, I believe it was wrong. "Content-neutral" restrictions on speech are okay if the government also has a significant interest in the restriction (it does: reducing potential corruption and bribery and improving signal-to-noise) and any speaker still has ample opportunities for speech (they do so long as the limit is set high enough to get in a reasonable number of ads). (Look up Ward v. Rock Against Racism, which allowed a restriction on decibel levels for amplifiers in Central Park, so long as they applied regardless of what words were blaring over the speakers and who was yelling them. Same principle.) So I believe a spending limit meets this test and is valid, if it applies regardless of the entity's status: to both Bill Gates and Microsoft, both CNN and Ted Turner. This is what I hope the Court corrects when Western Tradition reaches them.
(Also perfectly permissible, by the way, are any number of disclosure rules. The Court explicitly okay'd those in the same case -- Citizens United still had to put the "paid for by" message on its advertising -- as they passed the content-neutral test.)
The First Amendment doesn't forbid limits, but it does forbid limits that are applied only to corporations and organizations (that is, when Congress picks and chooses which entities to shut up). You can't isolate certain speakers or messages, even if the speaker is an organization of individuals. Otherwise you cripple an important part of free speech: the right of many to speak as one.
For those who haven't heard, the Montana Supreme Court in Western Tradition Partnership v. Bullock has rejected the idea that corporations had the right to fund campaigns, claiming that there were special circumstances in Montana that meant the famed Citizens United v. FEC didn't apply. As the dissent pointed out, what they were really saying was that they just didn't like the Supreme Court's ruling and were choosing to ignore it. To the surprise of no one, the Supreme Court has picked up the gauntlet and taken on an appeal of the decision.
But this is a good chance to discuss the original case, because I hear a lot of complaint about Citizens United by people who don't seem to know much about it beyond "it allows corporations and super-PACs to flood the airwaves with political ads." Which is true, but only in the same sense that Miranda v. Arizona allows people to commit crimes and then flaunt them to the police without consequence. That is to say, it's an unfortunate side-effect, and it could do with some tweaking to prevent abuse, but given the alternative, we're much better off for it.
Let me ask you some questions:
1) Should a pro-choice group be able to detail an incumbent's record on abortion or contraception on their website and push for the readers to vote him out?
2) Should a teacher's union be able to compare the various candidates' past funding for education on display in their newsletter and endorse the one with the best record?
3) Should the NAACP be able to to release ads in the middle of primary season opposing a candidate it believes is racist?
4) Should MoveOn.org be able to do anything it does?
Did you say "yes" to any of those? To all of those? Then you're supporting Citizens United, or at least the primary point of it, because none of those were technically legal until the Court made its ruling.
Fact: It's the last question that is particularly on point for Citizens United, because that's what we were dealing with: a non-profit organization, funded by individual contributions, vocally opposing Hillary Clinton's run for president. There was no for-profit corporation. There was no super PAC. The FEC restriction that the Court struck down was not limited to either. It couldn't be, because there is no legal line to draw between a non-profit organization and a for-profit corporation, or between either and a super-PAC. Regardless, the entity has a status independent of any of its members. If you can silence any such entity, you can silence all.
(The opinion itself noted other situations that the restriction in question would silence if universally enforced: "The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech.")
Fact: Citizens United did not decide that corporations had speech rights, or that advertising counted as speech. Both had been true since at least 1977 with First National Bank of Boston v. Bellotti. The case merely elaborated that advertising funding could come from the corporation's general treasury instead of a smaller, restricted political fund, that the ads could explicitly endorse or oppose a particular candidate, and that they could be within the period of time previously restricted. It then got a lot of publicity, largely because Obama critiqued it in his State of the Union speech, but also because people perceive it as the sole cause of the super-PAC (more on that in a minute).
Fact: the ACLU came down on the side of Citizens United in their own amicus brief, which you can read on their website. This was not only because it was the correct result, but because the ACLU has a good sense of self-preservation (as the opinion noted, the ACLU could also be restricted from supporting or opposing candidates otherwise).
Just to be even clearer about the consequences, let's consider what happens with the opposite result: organizations have no free speech rights, at least not in advertising. Congress can silence them all. Okay, so that means individuals get all the power, right? Well, in a sense, yes. Every individual can spend money on their own ad. But what if an individual can't afford an ad? No problem, the traditional solution to that is to form an organization that will pool the money and... oops. Nope, that organization doesn't have the right to create an ad anymore. You spend your own money and that's it.
So now who's the loudest voice? The 1%. Bill Gates, Warren Buffett, the Koch brothers, or the Walton family can spend millions on advertising without having to involve a corporation or organization. The richest candidates are close behind, with Romney, Schwarzenegger, and Kerry filling the airwaves using their personal funds. Meanwhile, candidates with little personal funds and no rich individual backers are dead in the water, unable to afford a single ad on any medium with any weight. And grass roots movements can't support candidates effectively. But with Citizens United on the books, the 99% can organize against and overpower the 1%.
So, 5) Should individuals be able to organize their funds such that they can afford to produce a political ad, when they would be unable to afford to do so individually? If so, you want Citizens United on the books.
With all that said: Super-PACs exist because of a separate ruling by the DC Circuit in SpeechNOW.org v. FEC, which ruled that organizations independent of any candidate could not have upper limits on acceptance of contributions. Although the court claimed to be applying the intent of Citizens United, I believe that claim to be inaccurate, and to the extent that the Supreme Court did have such an intent, I believe it was wrong. "Content-neutral" restrictions on speech are okay if the government also has a significant interest in the restriction (it does: reducing potential corruption and bribery and improving signal-to-noise) and any speaker still has ample opportunities for speech (they do so long as the limit is set high enough to get in a reasonable number of ads). (Look up Ward v. Rock Against Racism, which allowed a restriction on decibel levels for amplifiers in Central Park, so long as they applied regardless of what words were blaring over the speakers and who was yelling them. Same principle.) So I believe a spending limit meets this test and is valid, if it applies regardless of the entity's status: to both Bill Gates and Microsoft, both CNN and Ted Turner. This is what I hope the Court corrects when Western Tradition reaches them.
(Also perfectly permissible, by the way, are any number of disclosure rules. The Court explicitly okay'd those in the same case -- Citizens United still had to put the "paid for by" message on its advertising -- as they passed the content-neutral test.)
The First Amendment doesn't forbid limits, but it does forbid limits that are applied only to corporations and organizations (that is, when Congress picks and chooses which entities to shut up). You can't isolate certain speakers or messages, even if the speaker is an organization of individuals. Otherwise you cripple an important part of free speech: the right of many to speak as one.