Citizens United — Not as Bad As You Think
posted by Gerard Magliocca
While I said the other day that I don’t know a lot about campaign finance reform and thus probably shouldn’t comment on Citizens United, I’ve decided — in typical academic fashion — not to let my ignorance stand in the way of my opinions.
1. I hope this case dispels the myth that there are any real “judicial minimalists.” All that means is “I don’t have five votes to reach the result that I want.” When five votes are present, the Court cuts through the narrow grounds for decision like a hot knife through butter. It’s happened before. It’ll happen again.
2. Of course treating a corporation as a person is a legal fiction. But so is the idea that corporations are a monolithic entity. Some corporations want patent reform. Some don’t. Some corporations support more oil drilling. Others want more subsidies for wind power or ethanol. The notion of corporate power makes sense in some instances (e.g., hiking the corporate tax rate) but in most cases it’s a wash.
3. I am not persuaded that lots of lobbying through money is the cause of policy gridlock. If that were true, then presumably social issues (which moneyed interests don’t care about) would be easier to resolve. Doesn’t seem to be the case for abortion, gay rights, or other similar topics though.
4. Filibuster reform would do a lot more than campaign finance reform to make our democracy healthier. Decades of campaign finance regulation accomplished very little.
5. Don’t I have a right to hear what corporations have to say about candidates or election issues? I might learn something useful, so long as I know who the source is and can make a credibility assessment.
6. Most corporations avoid politics because it could alienate potential customers. Thus, I don’t think that the predicted “flood” of corporate money into campaigns will actually materialize.
7. Note to Keith Olbermann: Citizens United is not the worst decision since Dred Scott. Good job insulting Japanese-Americans from WWII, kids who had to sit in segregated schools, and women who were sterilized because they were mentally handicapped. Your Howard Beale impersonation, though, continues to be right on target.
January 23, 2010 at 11:05 am
Posted in: Constitutional Law
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Responses (5)
PrometheeFeu - January 23, 2010 at 6:36 pm
Well, if you listen to Keith Olbermann, everyone is either a moronic, sexist, racist, nazi, child molester or agrees with him. That’ why I watch him as much as I watch Glenn Beck. Come to think of it, the only place I’ve ever seen Glenn Beck taken vaguely seriously was on Olbermann’s show, but I digress. (Or whatever it’s called when you go off topic before starting to talk about your point.)
While preoccupied by the effects of this ruling, I think it is unlikely to be the apocalypse some people see coming. We must never forget that behind corporations sit individuals who have plans themselves. And if a corporation starts throwing its shareholder’s money at something its shareholders disapprove of, the shareholders are likely to take strong action against the board and management. And let’s face it: If somebody with a lot of money (ie an influential shareholder) wanted to throw money at an issue or election, they can always cash out and do their own publicity campaign. So sure, this maybe will make it easier for some people to throw money at a federal campaign, but I expect it to be a marginal effect.
And that is on top of your two points.
A.J. Sutter - January 23, 2010 at 8:39 pm
“…but in most cases it’s a wash”: Really? What corporations want is almost always only in the private interest of their management and shareholders, rather than in the public interest. (I insert the ‘almost’ purely as an insurance policy against some stray counterexample.) Indeed, there are many in the legal academic profession who have contended that this is entirely appropriate. It’s hardly reassuring that Google and Microsoft may try to influence some issue in opposite directions, in their battle to dominate our online activities and collect information about us; similarly for, say, the natural gas vs. coal industries. Not that these attempts would have ground to a halt had Citizens United been decided on narrower grounds or with a different outcome, but the danger now is that the decision will encourage them. If we’re to rely on disagreements among corporations for our politics, then the majority’s reliance on “corporate democracy,” though narrow in the context of the opinion, may soon take on a much more ominous resonance.
Brett Bellmore - January 25, 2010 at 4:52 am
“Decades of campaign finance regulation accomplished very little.”
Not so! They contributed substantially to driving up the reelection rate for incumbents, while all but destroying every attempt by third parties to challenge the major parties. As was intended.
As a member of the Libertarian party I watched as, every time we found a way to get enough money to finance a real campaign, the government outlawed it by the next election. Anybody who thinks this sort of thing was an accident is loony, it’s the POINT of campaign ‘reform’ from the perspective of the people writing the laws.
Any more campaign ‘reform’ and we might as well abolish terms, and make House and Senate seats for life.
John Quest - January 25, 2010 at 9:25 am
I think the biggest problem with the case is giving corporations the full measure of rights under the Constitution as if they were human beings. Should they be given the right to vote as well? Isn’t it discriminatory to deny them those rights? How about the corporate right to bear arms?
mahtso - January 25, 2010 at 12:57 pm
Mr. Quest
Your rhetorical questions would be more meaningful to me if all corporations were being treated equally. Instead under the “old” law, the NY Times, Fox News Corp., GE, etc. were treated one way and most others (i.e., those that do not own media outlets) were treated another way.
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