Well, I was planning to write a trenchant analysis of the Supreme Court’s ruling in Citizens United v. Federal Election Commission this weekend, but helping my father celebrate his 60th birthday was a far better use of my time. Now I discover that most of what I wanted to say has been better said by others, so I’mna just go through my list of links and cherry-pick quotations. This might get long.
Pride of place goes to Glenn Greenwald, because his “deep ambivalence” has produced some impressively lucid commentary. He also touches on damn near everything I wanted to say, and does so with great eloquence and ample citations:
Greenwald notes that an unConstitutional law that seems to produce good short-term outcomes is still unConstitutional. I would add (not to the perceptive reader’s surprise, I’m sure) that one should demand a much higher standard of evidence for the benefits of unConstitutional laws, and I’ll quote Greenwald’s example to support that point:
One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like. Denouncing court rulings because they invalidate laws one likes is what the Right often does (see how they reflexively and immediately protest every state court ruling invaliding opposite-sex-only marriage laws without bothering to even read about the binding precedents), and that behavior is irrational in the extreme. If the Constitution or other laws bar the government action in question, then that’s the end of the inquiry; whether those actions produce good results is really not germane.
He goes on to rebut the notion that the Citizens United ruling is about to plunge us into a bad-acid-trip-like abyss of unrestricted corporate influence over the course of government, mostly by pointing out that we’re already there:
I really don’t see how things can get much worse in that regard. The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin: “banks own” the Congress). Corporations find endless ways to circumvent current restrictions — their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold — and while this decision will make things marginally worse, I can’t imagine how it could worsen fundamentally. All of the hand-wringing sounds to me like someone expressing serious worry that a new law in North Korea will make the country more tyrannical. There’s not much room for our corporatist political system to get more corporatist. Does anyone believe that the ability of corporations to influence our political process was meaningfully limited before yesterday’s issuance of this ruling?
For his next trick, Greenwald produces the first piece of argumentation that makes me unhappy about the ruling while rebutting the common wisdom that Republicans get more corporate funding than Democrats:
If anything, unlimited corporate money will be far more likely to strengthen incumbents than either of the two parties (and unlimited union spending, though dwarfed by corporate spending, will obviously benefit Democrats more).
Greenwald also points out — with the tired impatience of someone who knows that most of his readers will ignore his remarks — that this isn’t just about teh ebil corpuh-ashuns:
But the speech restrictions struck down by Citizens United do not only apply to Exxon and Halliburton; they also apply to non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws. I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people — which is what corporations are — from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood. Does anyone doubt that the facts that gave rise to this case — namely, the government’s banning the release of a critical film about Hillary Clinton by Citizens United — is exactly what the First Amendment was designed to avoid?
(Emphasis again added.)
He amplifies this point in a later update:
I want to add one other point just to underscore how irrational, discriminatory and ineffective these political speech restrictions are. The invalidated statute at issue here exempted media corporations — such as Fox and MSNBC — from these restrictions, since the Government obviously can’t ban media figures from going on television and opining on elections (the way they do all other corporations). But as Eliot Spitzer noted when urging the Supreme Court to strike down this law (h/t David Sirota), what possible justification is there for allowing News Corp. and GE to say whatever they want about our elections while banning all other corporations (including non-profit advocacy groups) from doing so?
That’s what restrictions on political speech almost always do: whether intended or not, they favor the views of certain factions while suppressing others. In this case, it allowed the views of News Corp., GE, and Viacom to flourish (through their ownership of media outlets) while preventing the ACLU and Planned Parenthood from speaking out.
(Emphasis in the original.)
Finally (and germane to the point of irrational discriminatory ineffectualness), Greenwald points out that the damn laws don’t even work:
Large corporations employ teams of lawyers and lobbyists and easily circumvent these restrictions; wealthy individuals and well-funded unincorporated organizations are unlimited in what they can spend. It’s the smaller non-profit advocacy groups whose political speech tends to be most burdened by these laws. Campaign finance laws are a bit like gun control statutes: actual criminals continue to possess large stockpiles of weapons, but law-abiding citizens are disarmed.
So, to summarize:
- “It’s unConstitutional, but it’s for the common good” is almost always a sign that you have a bad law, and should never be used by itself to justify one.
- Large corporations, labour unions, and special-interest groups like the AARP are already spending a shit-ton of money to influence the course of government and shape popular opinion.
- Massive chunks of third-party campaign-advertisement funding are more likely to favour incumbents than any party in particular; seems that bean-counters want to minimize risk.
- McCain-Feingold affects small advocacy groups — the “grassroots” of “popular democracy” and “local politics” — as well as big evil faceless (corporations|unions|SIGs).
- McCain-Feingold doesn’t affect all corporations; in particular, the media corps that own newspapers and TV networks can spend all they want on political speech.
- McCain-Feingold is easily circumvented if you have enough money; its major effect is to keep the little guy down.
Five cheers out of nine for the Supreme Court.
Next we find this analogy on Ideoblog:
It’s short, so I’ll reproduce it in full:
The dissenters in Citizens United relied partly on the founders’ skeptical 18th century view of the corporation. (Justice Scalia had a different view on this issue.)
I wonder if, when same sex marriage is presented to the Court, the dissenters will feel the same way about the founders’ conception of marriage.
I’m also inordinately pleased with my comment on that post, so I’ll reproduce that in full:
I’m amused by the similarities between the typical left-ish arguments against corporate political speech and the typical right-ish arguments against same-sex marriage: Both sides claim (with varying degrees of hysteria) that favoured special interests are being unfairly granted extra rights which will inevitably destroy long-held and sacrosanct cultural values.
The “extra rights” referred to in the left-ish tirades against Citizens United have to do with corporate person-hood. As they apply to free speech, this post at Coyote Blog puts it best:
Until today, we had the right to free speech, and the right to assembly, but not the right to free speech when we were assembled. The Supreme Court has thankfully corrected that absurdity.
Ideoblog’s Larry Ribstein also posted this rather good analysis of the whole thing:
(Hat tip for both: Cafe Hayek)
Next we enter the apparently-requisite “okay, smartypants, what’s your big idea then? Huh? Huh?” phase of the argument.
Doug Mataconis favours transparency over regulation:
- Supreme Court strikes a victory for free speech (Below the Beltway)
As I’ve said many times before, the only campaign finance regulation that we need is full and complete disclosure.
Every candidate for Federal office should be required to disclose all contributions and disbursements and a regular basis (possibly even more frequently than the quarterly reports that are now the law), and that information should be easily available to the public so that people can know where a candidate’s money comes from and where it goes.
(Emphasis in the original.)
Frum’s proposal is a recipe for creating machine politics on a national scale. Strengthening parties is a guaranteed way of ensuring that everything will be a party-line vote, which may or may not be a bad thing, depending on your perspective. But because it strengthens parties so much, it just shifts the appearance of corruption from individual politicians with only one vote or one voice who are at least nominally accountable to the electorate to national party chairmen with near-absolute control of every vote in their party and of every agenda item in their party who are not even nominally accountable to the electorate.
The occasional willingness of candidates to buck their party’s line is one of my favourite things about American politics. With only two viable national parties, I’d go so far as to say that it’s indispensible. I’d rather have McCain-Feingold than Frum’s national-pursestrings model.
My word count’s edging up towards two thousand, and I’m running out of interesting things to say about the subject. So here’s a list of other posts on Citizens United, for your reading pleasure and possible edification:
- Free hearing (Marginal Revolution)
- About that corporate takeover of politics (Reason)
- A cautionary note on Citizens United (Power Line)
- Another note on Citizens United (Power Line)
- What’s worse: “disingenuously waving the flag of the First Amendment” or burning it? (Reason)
- Further thoughts on corporate speech (Coyote Blog)
- Corporate rights and property rights are human rights: why it’s a mistake to conflate a right with the means used to exercise it (The Volokh Conspiracy)
- It turns out the First Amendment prohibits Congress from punishing people for their political speech (Reason)