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Money Unlimited
May 15, 2012 5:55 AM   Subscribe

Money Unlimited How John Roberts Orchestrated the Citizens United decision.

If the Justices had resolved the case as Olson had suggested, today Citizens United might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law.

Instead, the oral arguments were about to take the case—and the law—in an entirely new direction.
posted by modernnomad (87 comments total) 21 users marked this as a favorite

 
Jonathan Adler, writing on Volokh's blog:
As Toobin tells the tale, Citizens United is emblematic of the current Court’s assault on precedent and the prerogatives of the political branches. It’s a nice story, but it’s not true. “Judicial activism” is a notoriously malleable charge, but if “judicial activism” is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least “activist” court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of its post-war predecessors, and it’s not even close. “Activism” is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented “activism,” it’s not clear what “activism” means.
posted by BobbyVan at 6:09 AM on May 15, 2012 [2 favorites]


BobbyVan, something to note is that the court is quite conservative (there's been a lot of Republican presidents recently) and is responding to a set of laws that arose from conservative legislative environment; one wouldn't expect there to be a great amount of reversed legislation. It's more about the fact that the court seems minded to pull the country more towards increased freedoms for companies and decreased freedom of government to regulate (even setting aside civil liberties for now).

There's less reversals because the ideologies mesh.
posted by jaduncan at 6:16 AM on May 15, 2012 [4 favorites]


Wow, the first comment is already a direct charge of inaccuracy, and against a New Yorker article to boot. It was posted just 16 minutes beforehand to boot.
posted by JHarris at 6:16 AM on May 15, 2012 [1 favorite]


decreased freedom of government to regulate

That's one heck of a phrase.
posted by BobbyVan at 6:20 AM on May 15, 2012 [6 favorites]


decreased freedom of government to regulate

That's one heck of a phrase.


In a constitutional republic, the point of representative government is to regulate private actors for the public good.

Not everyone thinks that "government" is a swear word, you know.
posted by a small part of the world at 6:29 AM on May 15, 2012 [30 favorites]


Arguably, SCOTUS decisions relating to Congressional powers do in fact constrain Congress from acting in ways that it might otherwise legitimately act in the absence of countervailing pressure from the other branches. It is, as you say, a heck of a phrase, but it's not necessarily inaccurate to say that the Court constrains the freedom of Congress.
posted by gauche at 6:30 AM on May 15, 2012 [1 favorite]


It is, as you say, a heck of a phrase, but it's not necessarily inaccurate to say that the Court constrains the freedom of Congress.

Right, but only insomuch as Congress interferes with the constitutional rights of citizens.
posted by BobbyVan at 6:35 AM on May 15, 2012


Pace Jonathan Adler, the whole "activism" thing is largely a canard. The Justices can shape or modify law, or constrain and enable other branches, without having to overturn specific pieces of legislation -- they can clarify previous rulings, deny cert on important test cases, uphold statutes for reasons other than those offered by the government, etc. "Activism," if it means anything other than an enthusiasm for striking down legislation, is usually in the eye of the beholder. Toobin's major point isn't that Roberts is "activist," it's that he's atavistically trying to return us to a pre-New Deal constitutional jurisprudence, if not the Gilded Age itself.
posted by a small part of the world at 6:37 AM on May 15, 2012 [2 favorites]


Right, but only insomuch as Congress interferes with the constitutional rights of citizens.

No. It is not the case that the only time that SCOTUS constrains Congress' ability to act is when Congress has itself interfered with the Constitutional rights of citizens. This kind of binary thinking is often very compelling, but it is rarely rigorous. The actual operation of Constitutional law, substantive and procedural both, is far more complex than this. I recommend Chemerinsky.
posted by gauche at 6:44 AM on May 15, 2012 [4 favorites]


gauche, you're correct of course that SCOTUS constrains Congress in several ways (when it encroaches on the Executive Branch, for one). It was wrong for me to say that the Court constrains Congress "only" when it interferes with the rights of citizens. That said, it's kind of pompous and condescending of you to give me an Amazon.com link to a legal scholar.
posted by BobbyVan at 6:48 AM on May 15, 2012


Fair enough. I don't intend to be condescending or pompous, and I do apologize.

It is a bugbear of mine to encounter people refer to the Constitution as though it were a simple thing, and I spoke out of irritation rather than consideration. Again, I apologize.
posted by gauche at 6:53 AM on May 15, 2012 [3 favorites]


Thanks. We're cool.
posted by BobbyVan at 6:54 AM on May 15, 2012 [2 favorites]


As usual, Toobin is more impressed with his own insider access and mystique than accurate analysis. Adler's anlaysis, and that of Tom Goldstein, are much better.

Disclosure: Having read The Nine, I think Toobin is a bloviating asshat, I often disagree with Goldstein and Adler both even though I admire them, and I don't think the Roberts court is in any way especially wonderful or terrible.
posted by Inspector.Gadget at 6:59 AM on May 15, 2012 [1 favorite]


I should mention that in this particular case I'm not exactly enamoured of Toobin's portrait of Roberts; it's rather too gauche to be believable.
posted by jaduncan at 7:07 AM on May 15, 2012


hey! I already apologized and everything!
posted by gauche at 7:07 AM on May 15, 2012 [13 favorites]


I think that Citizens United was pretty activist in the sense that it almost completely negated the assertion by Congress over the last century that corporations are subject to more regulation than individual citizens. Also, the Court also really broadened the scope of the question they were asked to answer.
posted by Benny Andajetz at 7:09 AM on May 15, 2012 [3 favorites]


Also, too many "alsos".
posted by Benny Andajetz at 7:11 AM on May 15, 2012


I find Adler's post (linked to by BobbyVan above) confusing.
As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it’s not even close. “Activism” is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority.”
His argument is partly based on a quantitative evaluation of the rate of judicial activism, when Toobin's accusation of "aggressive conservative judicial activism" is all about the actual scope and practical results of the court's decisions. That seems like a rather more useful measure. And surely the dissenting opinions are completely irrelevant to the question of whether the court's actual decisions are "activist".

The last parts of the Toobin article, about Steven's dissent and the apparent agenda of the majority of the court, are interesting:
As for Kennedy’s fear that the government might regulate speech based on “the speaker’s identity,” Stevens wrote, “We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.” And Stevens, a former Navy man, could not resist a generational allusion: he said that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”
posted by A Thousand Baited Hooks at 7:13 AM on May 15, 2012 [2 favorites]


Not everyone thinks that "government" is a swear word, you know.
I think that referring to the government's "freedom to regulate" is just a bit irksome, though, in that it upends the traditional (in America) trope of freedom for people, and constraint for government. One wants to make sure the government can regulate within its competence; a toothless government is bad in its own way, obviously. But one shouldn't conflate the word freedom in such a way as to imply a leveling of status between the governed and the governing (for—despite it being a representative democracy, there is a difference). Those that have the power should require a dispensation to use it; those who have not power, the freedoms.
posted by adoarns at 7:14 AM on May 15, 2012 [2 favorites]


How about 'activist' in the sense that the lives of a lot of Americans changed pretty grossly starting right after the decision was handed down, relative to what it was before? Because individuals had much less power, relatively, as corporations suddenly became much more powerful politically, on that day. As a layman, I at least think that is one reasonable interpretation.
posted by newdaddy at 7:17 AM on May 15, 2012


is argument is partly based on a quantitative evaluation of the rate of judicial activism, when Toobin's accusation of "aggressive conservative judicial activism" is all about the actual scope and practical results of the court's decisions. That seems like a rather more useful measure.
It's certainly more useful if you want to be able to make claims about the court without having any accountability.
posted by planet at 7:20 AM on May 15, 2012 [1 favorite]


the traditional (in America) trope of freedom for people, and constraint for government

Another American trope is that the government is representative of the people (to varying degrees, of course). And the people's freedom to regulate -- through their governmental representatives -- corporate money's influence in elections was effectively gutted by the activism described by A Thousand Baited Hooks and newdaddy. The Roberts Court certainly did constrain the government, in a sense, but for a lot of bad reasons.
posted by Yesterday's camel at 7:23 AM on May 15, 2012


It's certainly more useful if you want to be able to make claims about the court without having any accountability.

Political scientists who study judicial politics have a variety of tools for measuring the scope and impact of judicial behavior, many of them more robust than simply counting the times the Court overturns legislation. Toobin's no academic, but I think most scholarly Court watchers, whether conservative or liberal, would disagree that using tools other than arithmetic to measure judicial impact is "unaccountable."
posted by Yesterday's camel at 7:25 AM on May 15, 2012 [2 favorites]


And as Benny Andajetz points out, by broadly expanding the scope of the question they were asked to consider, the justices were engaging in activism, if the term is to have any useful meaning.
posted by Yesterday's camel at 7:29 AM on May 15, 2012 [2 favorites]


Those that have the power should require a dispensation to use it; those who have not power, the freedoms.
Right, but this case assigned the freedom to corporations who already have the power. Binary visualizations of our society, viewed as man vs government, are incomplete. Corporations are now the dominant institution, and I think it's fair to say that they have more destructive power than the church had leading up to the creation of the Constitution.

We need a wall of separation between our government and any entity beyond a real human being with the capacity and the right to participate in that government. Otherwise we will always subject our society to corrupted influence that has no ultimate interest in the welfare of human beings, or in the governments we want to form.

A corporate person is innately inhuman, and much worse than an aristocrat or a Pope. Royalty and clerics alike have to eat and breathe, but a corporation would still consider itself a success if there was a positive balance in the account at the end of the world. When viewed from this angle, the timing of the deregulation of corporate power and the decline of our society make perfect sense. Our society is now controlled by "people" — immortal, heartless, and lawfully bound to seek profit at any cost — who have little interest in our long term survival.
posted by deanklear at 7:35 AM on May 15, 2012 [6 favorites]


I think Toobin is a bloviating asshat

The guy is an idiot, for certain. Has he really done anything but clerk and be associate counsel to Larry Walsh? How much trial work has this guy done, or appellate work? I mean he sure comments on a lot of cases.

As for the article, it is gonna get read, so I will comment on it when I read it later. I dislike the money=speech formula and fully support limits to campaign contributions and coordinated campaign spending. Preferred McCain-Feingold, myself.
posted by Ironmouth at 7:39 AM on May 15, 2012 [1 favorite]


Our society is now controlled by "people" — immortal, heartless, and lawfully bound to seek profit at any cost — who have little interest in our long term survival.

Its nothing we don't let happen every day. The American voter landed us in this spot, plain and simple. And we can only get out the hard way--by voting our way out of it.
posted by Ironmouth at 7:40 AM on May 15, 2012 [2 favorites]


Some useful links on quantitative / empirical measures of Supreme Court behavior:

Martin-Quinn Scores

Supreme Court Database

Empirical Legal Studies

The Law and Society Review (sadly, gated) is a good representative of qualitative studies of judicial impact, which are also important.

See also Barry Friedman's The Will of the People for a more doctrinal / legal approach to understanding the effect of Supreme Court decisions. His thesis is contested; see Gerald Rosenberg's The Hollow Hope for an opposing view.

All told, we have a variety of resources for understanding whether or not a Supreme Court decision conforms to doctrine or disrupts it, constrains or enables political institutions, is better or worse at representing public opinion, etc. The charge of "activism" can mean a variety of things, but we have the tools to see whether or not it should stick.
posted by Yesterday's camel at 7:43 AM on May 15, 2012 [2 favorites]


I recommend Chemerinsky.

Nthing this guy. Can teach con law, can write about it, can teach you the fucking bar exam too. Amazingly smart human being. Somebody we should be listening to. Just not a TV face or voice.
posted by Ironmouth at 7:44 AM on May 15, 2012 [1 favorite]


Its nothing we don't let happen every day. The American voter landed us in this spot, plain and simple. And we can only get out the hard way--by voting our way out of it.

When did we start voting on the Supreme Court?
posted by deanklear at 7:45 AM on May 15, 2012


We vote on the people who put people on the Court, and the process -- have you noticed? -- is entirely politicized.
posted by Yesterday's camel at 7:46 AM on May 15, 2012 [1 favorite]


We vote on the people who put people on the Court, and the process -- have you noticed? -- is entirely politicized.

Are you complaining that politics is politicized?
posted by BobbyVan at 7:49 AM on May 15, 2012 [1 favorite]


Are you complaining that politics is politicized?

Not at all! Which is why I agree with Ironmouth that progressives who want to bring back adequate campaign finances regs need to vote for candidates who will pursue the relevant legislation and staff the Court accordingly.
posted by Yesterday's camel at 7:52 AM on May 15, 2012


Its nothing we don't let happen every day. The American voter landed us in this spot, plain and simple. And we can only get out the hard way--by voting our way out of it.

When did we start voting on the Supreme Court?


We elect the people who appoint the Supreme Court and the people who confirm the Supreme Court. We did this. 100%
posted by Ironmouth at 7:53 AM on May 15, 2012 [2 favorites]


Even though your favorite team is winning, Bobby Van, yes it's a horrible shame that the theoretically independent and fair judiciary is thoroughly compromised by Republicans who systematically are seizing control through the Federalist Society vetting, filibustering and selection of the youngest, most ideological picks possible.
posted by msalt at 7:53 AM on May 15, 2012 [2 favorites]


We vote on the people who put people on the Court, and the process -- have you noticed? -- is entirely politicized.

That's great, but one could, if one were hypothetically so inclined, copy & paste Ironmouth's blame-laying for Supreme Court idiocy into any thread about any political problem in America. Using redistricting to gerrymander the country? Its nothing we don't let happen every day. BP oil spiil? The American voter landed us in this spot, plain and simple. Endless foreign wars? We can only get out the hard way--by voting our way out of it.

It's not wrong. It's "not even wrong". It's not helpful. It's a simplistic, depressing, reductionist one-size-fits-all bumper-sticker way to understand what is wrong with America, is the problem
posted by crayz at 7:54 AM on May 15, 2012 [2 favorites]


It's a chicken and egg problem. No one voted for GW Bush, and the Iraq War, and the legalization of unlimited funding for corporate propaganda. They voted against abortion, gay marriage, and Al Gore. But since our culture is fixated on two party-ism, they have to defend horrible decisions because they voted for the guy, and then those horrible ideas are part of the party platform.

Only five US citizens voted to make unlimited corporate campaign propaganda legal. The Congress elected by tens of millions of others passed legislation that expressly forbid it.
posted by deanklear at 7:56 AM on May 15, 2012 [4 favorites]


I don't think anybody is suggesting that the Supreme Court is answerable for all the ills that bedevil the US.

I think it's important to note, however, that it is quite easy to influence the composition of the Court through electoral politics. And this puts the lie to the bald-faced untruths uttered by Roberts during his own nomination hearings when he pretended to be a "neutral umpire." The Court has substantial but not unlimited influence on policy-making, and the presidents and senators who appoint justices know that. And card-carrying Federalist Society Members like Roberts know it.
posted by Yesterday's camel at 7:57 AM on May 15, 2012


> In a constitutional republic, the point of representative government is to regulate private actors for the public good.

That's only true if "regulate" includes creating new regulations, altering existing regulations, removing old regulations, and (most of the time) refraining from regulatory action. Then it's trivially true.

Also, it's not any part of representative government to regulate government actors? Wowee, I just knew you guys felt that way.
posted by jfuller at 8:01 AM on May 15, 2012 [1 favorite]


The guy is an idiot, for certain. Has he really done anything but clerk and be associate counsel to Larry Walsh? How much trial work has this guy done, or appellate work? I mean he sure comments on a lot of cases.

Very intelligent and accomplished people are entirely capable of making lazy, facile arguments (particularly against positions or opponents that they regard as unworthy), and I believe that most of Toobin's commentary on the Roberts Court falls squarely in that mode. I think that his failure to properly engage his purportedly giant brain is amply demonstrated by Tom Goldstein's analysis of Toobin's account of Citizens United.
posted by Inspector.Gadget at 8:04 AM on May 15, 2012


Also, it's not any part of representative government to regulate government actors? Wowee, I just knew you guys felt that way.

I know I shouldn't rise to the bait, but... in what sense was the Court curbing a nefarious, out of control Congress by declaring open season for corporate campaign contributions in Citizens United? In what way was Roberts vindicating the separation of powers by sanctifying corporate personhood? It's neither fair nor accurate to portray opposition to this one particular Court decision -- one with profound ramifications for representative democracy -- as partisan, as "those guys" rooting on a particular team. Consider the possibility that people can be upset with Roberts' bad reasoning for principled reasons and not partisan ones.
posted by Yesterday's camel at 8:06 AM on May 15, 2012


We elect the people who appoint the Supreme Court and the people who confirm the Supreme Court. We did this. 100%

In this case you are completely wrong. The Supreme Court, nominated by politicians who were previously elected, gave the Presidency to the loser of the 2000 election. The Congress then passed laws outlawing corporate money in a bipartisan campaign finance reform bill. The loser of the 2000 election nominated Roberts, who used procedural tricks to expand the meaning of a case brought before the court once he realized his side would win.

I agree that Americans should be more politically active, but you can't get there by telling them that it's their own fault for not foreseeing that their government would discard their vote not once, but twice.
posted by deanklear at 8:07 AM on May 15, 2012 [9 favorites]


Using redistricting to gerrymander the country? Its nothing we don't let happen every day.

Who do you think voted in the gerrymanderers?

I agree that Americans should be more politically active, but you can't get there by telling them that it's their own fault for not foreseeing that their government would discard their vote not once, but twice.

We don't have to tell them its their fault, we just need to get them to stop only paying attention during the last six months of anything. Look at PIPA and SOPA. Doable. We just need to stay on top of Congress and the rulemaking at the agencies, really. The Administrative Procedure Act, how many people know of it? Yet so many of the things that we complain about just require our input.

My fave Occupy Group? Occupy the SEC. Why? Because they actually draft comments to rulemaking notices. That's my idea of a great Occupy group. Direct action right at the heart of the policy-making apparatus. Not sexy or fun, but damn, so, so more important to financial regulating. As long as people keep saying "we don't like the banks" they will get away with murder. As soon as people are saying "we don't like the new rule that allows for "hedge trading" that is actually proprietary trading, then the bad guys have no chance.

Imagine if people just sent in 75,000 letters. You'd bet they'd pay attention. Or even better, 90,000. One to the president, one to the Agency during the comment period. Not fun. Not sexy. Very hard. But necessary.
posted by Ironmouth at 8:15 AM on May 15, 2012 [4 favorites]


My fave Occupy Group? Occupy the SEC. Why? Because they actually draft comments to rulemaking notices. That's my idea of a great Occupy group. Direct action right at the heart of the policy-making apparatus. Not sexy or fun

Says you.
posted by zombieflanders at 8:16 AM on May 15, 2012 [1 favorite]


Direct action right at the heart of the policy-making apparatus. Not sexy or fun
Says you.


Yeah, that sounds pretty sexy to me.
posted by A Thousand Baited Hooks at 8:18 AM on May 15, 2012 [1 favorite]


decreased freedom of government to regulate

That's one heck of a phrase.
posted by BobbyVan

In a constitutional republic, the point of representative government is to regulate private actors for the public good. . . .
posted by a small part of the world


I think BobbyVan was pointing out a striking irony with profound implications.

OK, as you said, "the point" of government is to regulate things that private actors (people, corporations, organizations) do. But many of us wouldn't choose the word "freedom" to describe that. We'd be more inclined to call it an infringement of freedom.

That's not necessarily bad; the government should infringe people's freedom to do some things. But it's still an infringement. Of course, whether or not it's a worthwhile infringement in a particular case will often be controversial. But if I'm making a list of pros and cons of a law, I'm generally going to put infringement of liberty on the "con" side (even if it's infringing people from doing something I strongly disapprove of, like eating factory-farmed meat or shooting up heroin).

However, you seem to want to foreclose that whole way of talking, because the whole point of government is to regulate -- and after all, who could object to government carrying out its very raison d'etre? To you, that might be a justification for government action. But other people see it differently; to them, it's highly disturbing and a strong reason to be deeply skeptical of government. Not that there should be no government, but there should be a general presumption against government preventing people from doing things they would otherwise want to do or forcing them to do things they don't want to do.

And with any First Amendment issue, especially when politics is involved, I would apply that presumption very strongly against allowing government to regulate how people are allowed to express their viewpoints. And yes, one way of doing that kind of regulation is to forbid people from spending money on certain kinds of political expression, like making a documentary that's designed to get people to feel an aversion to Hillary Clinton or George W. Bush. The problem isn't that money is speech. Obviously, money is one thing, and speech is something else. But I have a problem with the government regulating the spending of money in order to prevent people from broadcasting their political views.
posted by John Cohen at 8:19 AM on May 15, 2012 [2 favorites]


FWIW I'm of the opinion if we had less of Occupy [insert city here] and more of Occupy [insert financial regulatory/governing body here], there would be a lot more progress being made.
posted by zombieflanders at 8:25 AM on May 15, 2012 [3 favorites]


Corporations aren't really "people", though, except in a very artificial, legalistic sense. They owe their existence entirely to a dispensation from the State. Applying the idea of "liberty" to a legal construct like a body corporate just doesn't make sense, whatever that crazy court thinks.
posted by A Thousand Baited Hooks at 8:26 AM on May 15, 2012 [1 favorite]


The way Chief Justice Roberts "orchestrated" the Citizens United decision (and his approach in general) is in considerable tension with the way he portrayed himself at his confirmation hearings as a disinterested umpire who calls balls and strikes.
posted by *s at 8:32 AM on May 15, 2012 [1 favorite]


Wow, the first comment is already a direct charge of inaccuracy, and against a New Yorker article to boot. It was posted just 16 minutes beforehand to boot.

Well, the cited article has been burning up the internets for sufficient time before it made it here that people being ready to pounce is hardly surprising. That Adler piece is just total BS. This is as activist a decision as you are likely to find. Yes, let's send it back for more argument so that we can make a broad pronouncement of the law, and in the process overturn some stuff we really don't like. That is pure activism.
posted by caddis at 8:37 AM on May 15, 2012


John Cohen,

I think there's a fundamental disagreement here about how we interpret the concept of freedom. Freedom, as I understand you describing it, is non-interference; in contrast, I think that constitutional republics should instead be in the business of freedom as non-domination. The uninfringed "freedom" of corporate actors to buy elections impedes the exercise of my own freedom so-considered, and I, like other citizens, rely on representative political institutions to promote the common good, which can include restricting the raw freedom of action of other actors. There's no necessary contradiction in saying that true freedom depends upon the regular exercise of government power. It's not the case that every act of regulation somehow diminishes the total sum of freedom and makes everybody worse off.
posted by Yesterday's camel at 8:41 AM on May 15, 2012 [5 favorites]


I don't have time to read this particular article right now, or even all the comments here, but having some some time studying media law (as formatted for a communications/journo) I find my feelings about CU are less black and white than most people who are as socially liberal as I am.

Commercial speech hasn't had first amendment protection for even a full hundred years at this point. It was an early 20th century decision regarding a (as I recall) NY man who wanted to print handbills for his business that opened it up for any right to exist at all. Prior to that point municipalities were free to restrict commercial speech any way they wanted.

I think it's fairly obvious that the line between commercial and non-commercial speech isn't a perfect and bright one, and anything more than the most community-based sounds-of-my-voice speech demands a certain amount of commercial activity. Chick tracts, for example, still cost money to print.

Anyway, looking at the last hundred years of speech law you find a consistent expansion for the rights of commercial speech and a constricting of the government's ability to compel commercial speech (think posted signs). Looked at on that landscape I don't think the CU decision is all that abnormal or representative of a sudden or even large shift.

The repercussions are big and they trouble me, but looking at any business as a collection of people I'm not even so sure I think it's wrong. If it's okay for me to spend all my money on a cause is it not also all right for me to spend all the money from corporation which I hold all the interest in? Controlling interest? What if it's two of us? Three? Three hundred? I'm not sure this is an area where the solution to the problem - money in politics and how much money politics controls - is more restriction.
posted by phearlez at 8:53 AM on May 15, 2012


That's not necessarily bad; the government should infringe people's freedom to do some things. But it's still an infringement

This is starting from some libertarian fantasy raw slate which has never existed. I'd recommend David Graeber, among others, for a discussion of how the capitalist "free market" system whose existence you're presuming is itself entirely artificial, cultural, and enforced through violence. It is in no way obviously "less free" for a society to setup rules to stop the its own fiat money from being used to game the system
posted by crayz at 10:07 AM on May 15, 2012 [1 favorite]


That's not necessarily bad; the government should infringe people's freedom to do some things. But it's still an infringement

Our liberty is at times augmented by government intervention. The classic example is traffic laws. A well-designed system of traffic laws and regulations enables people to travel the roads and highways without having to negotiate with every driver individually, and with reasonable assurance of safety. Absent these laws and regulations, travel would be both slower and much more dangerous. Our material freedom to go here and there would be much more constrained, because it would take us longer to get where we were going, and because we would only do so at our greatly increased peril.

Certainly, not all regulation is like traffic regulation, but the presumption that an infringement is necessarily -- or even usually -- a net loss of liberty for society is not supported by the facts.
posted by gauche at 10:16 AM on May 15, 2012 [4 favorites]


Corporations aren't really "people", though, except in a very artificial, legalistic sense. They owe their existence entirely to a dispensation from the State. Applying the idea of "liberty" to a legal construct like a body corporate just doesn't make sense, whatever that crazy court thinks.

Rights are legal constructs that only have meaning for anyone when enforced. So to act like rights are "artificial" for corporations and not for people is not understanding the idea of enumerated rights. A right is as good as its enforceability.
posted by Ironmouth at 10:24 AM on May 15, 2012


For those interested in reading Justice Souter's "extraordinary, bridge-burning farewell to the Court" that was his dissent in Citizens United before it was reargued, it looks like we'll have to wait fifty years.
posted by Mr Mister at 10:33 AM on May 15, 2012 [3 favorites]


Right, but this case assigned the freedom to corporations who already have the power.
No, I totally agree. I was waxing a bit lyrical about why a phrase like "freedom of the government to regulate" seems jarring. My feeling is that it is completely within its competence to regulate against capture of decision-making by corporate bodies. Here might be appropriate a pithy saying about how the state is the leftist's friend against capitalists, but the rightist's friend against criminals, and so forth. But I like to keep in mind the same government that might regulate corporate political ads sends drones to kill American citizens without due process. It was a petty nicety of mine to wrangle about words, esp. when there's real political work to be done to effect real change, but as long as we're all just talking and whatnot online I thought I'd contribute.
posted by adoarns at 10:42 AM on May 15, 2012


crayz raises a very important point. Markets are created and sustained through political and legal institutions. Without a government backed currency, industry- as well as consumer-facing regulatory agencies, courts that enforce laws governing commercial transactions, etc., there are no such things as markets as we know them today. The notion that market activity precedes the state, or is somehow prior to it, is mistaken. To go on to describe state regulations or interventions in the market-- which is already a creation of the state, and is sustained by the state -- as infringements of natural rights is to hopelessly confuse the issue.

The great neoliberal / libertarian con job has been to convince large numbers of people to beleive both that "the market" already exists absent any actions taken by the state, and also that the state must actively expand the scope and penetration of the market into all spheres of human activity (even though it "already" exists there). The market doesn't need to be regulated by the state; and yet we must use the instrumentalities of the state to enable the market to pervade all sectors of society; or so the argument seems to go.

An example of that last point would be markets in intellectual property, which are clearly "artifical" (I don't use the term pejoratively); in that such markets had to be legally defined and codified such that there are relevant jurisdictions and agencies to enable trading in IP. (If IP markets did not depend on the exercise of state power, there'd be no need for the DMCA, for SOPA and PIPA, for ACTA, etc., to enable monopoly rentiers to extract surplus value from cultural goods.) We're told that government interventions are deleterious to the market, which is "natural," and yet in the case of IP we have a stark example of how the exercise of state power is necessary to create and sustain a market in the first place.

As crayz notes, there's nothing tyrannical or arbitrary about trying to curb the ability of powerful private actors to game the system by leveraging their lucre into political advantage. But Roberts would have us believe that "freedom" itself is at stake unless we allow large corporations to do as they please. I wish I knew whether Roberts is utterly cynical or utterly misguided. I'm not sure which I'd prefer.
posted by Yesterday's camel at 10:52 AM on May 15, 2012 [3 favorites]


Direct action right at the heart of the policy-making apparatus. Not sexy or fun
Says you.

Yeah, that sounds pretty sexy to me.
'

We need more sexy people like you.
posted by Ironmouth at 11:18 AM on May 15, 2012


So to act like rights are "artificial" for corporations and not for people is not understanding the idea of enumerated rights. A right is as good as its enforceability.

No. People actually exist. We have a subjective experience of the world, inherently full of thoughts and ideas and desires and the ability to take physical actions and interact with the world around us. A "corporation", on the other hand, is just a concept we, collectively as a society, have agreed to recognize. It exists only insofar as we exist and we decide to continue to recognize it's existence, and only within and according to the boundaries of existence we recognize. It is a shared idea

We do not actually prescribe the nature of a human being - they exist in the first place, they are us, and we agree how we will act towards each other. Corporations are a part of that shared contract we have with each other, and we can define the idea of a corporation however we like, but to get lost in talking about the "rights" held by that shared idea is just silly
posted by crayz at 11:20 AM on May 15, 2012 [7 favorites]


Corporations are a part of that shared contract we have with each other, and we can define the idea of a corporation however we like, but to get lost in talking about the "rights" held by that shared idea is just silly

This.
posted by Yesterday's camel at 11:23 AM on May 15, 2012 [1 favorite]


I see that gauche put my point earlier and more elegantly here.
posted by Yesterday's camel at 11:37 AM on May 15, 2012 [1 favorite]


One interesting thing about Citizens United, to me, is that it opened a back door for the entire world to influence United States elections. All they have to do is launder the money as corporate income and the corporation can spend all it wants to on the election. It is legal as church on Sunday.
posted by jefeweiss at 12:06 PM on May 15, 2012


A "corporation", on the other hand, is just a concept we, collectively as a society, have agreed to recognize. It exists only insofar as we exist and we decide to continue to recognize it's existence, and only within and according to the boundaries of existence we recognize. It is a shared idea

I'm going to go all Samuel Johnson on you, kick the side of a Starbucks and say "I refute it thus." Dude, that's an unnecessarily abstract argument bordering on the metaphysical. We could all agree to recognize a flying spaghetti monster by that logic... but it wouldn't be applicable to this situation because what we're talking about are voluntary associations of citizens who come together to advance a common objective.

The AARP and the NAACP are corporations in this plain sense of the word, in addition to profit-seeking enterprises with thousands of employees. I fail to see how one person's freedom is impeded when the government refrains from interfering with an organized group of citizens in the political arena. The effect on the individual person is inferred and hypothetical. The effect on the organization of citizens (the "corporation") is, however, very real and tangible.

Remember that we're not talking about contributing directly to candidates here -- we're talking about ideas. The Supreme Court in Citizens United ruled that associations of citizens (corporations or unions) can participate in the battle of ideas that surround our elections. I'm OK with that.
posted by BobbyVan at 12:11 PM on May 15, 2012


By the way, if you haven't read the ACLU's amicus brief in the Citizens United case [.pdf], it's well worth ten minutes of your time.
posted by BobbyVan at 12:42 PM on May 15, 2012


It is interesting that the court has a problem with government interference in corporations right to spend money on politics but has no problem with government interference in unions right to spend money on politics.

For example, in some states the government requires unions to get specific approval from each individual union member before spending on political campaigns. This is deliberately intended to place onerous burdens on unions to discourage political spending. There is no such requirement for corporate CEOs to get approval from each shareholder before spending on political campaigns.
posted by JackFlash at 1:24 PM on May 15, 2012 [1 favorite]


The "but unions get to do it, too" is always brought up, and it's disingenuous horseshit. There is NO comparison between the coffers of politically-inclined corporations and unions. Only TWO unions exist that can really play with the big boys - the NEA and the SEIU. That's it.

Meanwhile, corporations are working hard on the other side to do everything possible to cut the legs out from under the unions that do exist. It's never been a fair fight, and CU only makes it worse.
posted by Benny Andajetz at 2:12 PM on May 15, 2012 [1 favorite]


I don't think it's the role of the Supreme Court to impose an NFL-style salary cap on political factions so that we can have an ideally competitive political landscape. The pudding will never be "just right" for everyone.
posted by BobbyVan at 2:24 PM on May 15, 2012


I don't think it's the role of the Supreme Court to impose an NFL-style salary cap on political factions so that we can have an ideally competitive political landscape. The pudding will never be "just right" for everyone.

That's not really what Citizens United was about, though. In the final, much-expanded context of the decision (rather than the rather more limited context of the actual appeal), it was about whether Congress (not SCOTUS) could impose facially neutral restrictions on the dollar amounts corporate persons could spend in the service of political campaigns. "Supreme-Court-Imposed NFL-style Salary caps" is such a bad way of talking about what's going on in Citizens United that ... well, I am tempted to link to amazon.com again.
posted by gauche at 2:30 PM on May 15, 2012 [1 favorite]


Yeah, I was responding to Benny's lament about unions being outgunned by corporations.
posted by BobbyVan at 2:31 PM on May 15, 2012


Corporations are simply legal constructs to allow individuals to do things they otherwise would not be able to do. When I had my computer training company, I was able to sell my car (as a person) to my company (which I owned wholly) and keep driving it exactly as before, deducting the payment as a business expense and receiving the money as a non-taxable transfer rather than income.

It's already ridiculous to say that corporations have the same "rights" as individuals, but to do so while calling yourself true to the original intent of the constitution's authors is grotesque.
posted by msalt at 2:35 PM on May 15, 2012


Yeah, I was responding to Benny's lament about unions being outgunned by corporations.

I didn't bring it up, although this discussion always goes there.

That said, do you not see anything fishy with the fact that, at the same time we're handing corporations more power, the government and corporations have launched full frontal attacks on teachers and public employees - precisely the members of the only two unions big enough to give them any kind of fight in this "new and improved" political arena?
posted by Benny Andajetz at 2:44 PM on May 15, 2012 [2 favorites]


Gauche: To be more specific, I was responding to the implicit argument that CU is a bad decision because it seems to strengthen "corporations" at the expense of "unions" -- which isn't such a great way of talking about what's going on in Citizens United either. The "salary cap" analogy was obviously meant to be absurd.

And msalt: corporations aren't just legal mechanisms to let people get favorable tax treatment. They're also ways for people to do things as a group that they couldn't do individually. If I'm a strong believer in abortion rights, I can give money to NARAL and they can advocate for that issue in the context of elections... that marginal dollar probably goes farther than it would if I tried to be a one-man abortion-rights lobbyist.

Please everyone: read the ACLU's amicus brief I linked above.
posted by BobbyVan at 2:44 PM on May 15, 2012


If I'm a strong believer in abortion rights, I can give money to NARAL and they can advocate for that issue in the context of elections

Individuals could, and can, already do that.
posted by Benny Andajetz at 2:47 PM on May 15, 2012


that marginal dollar probably goes farther than it would if I tried to be a one-man abortion-rights lobbyist.

I will read the ACLU amicus when I get home tonight, but I did want to point out that you've just expressed precisely why money-as-speech subverts the principle of one-man, one vote.
posted by gauche at 2:51 PM on May 15, 2012 [2 favorites]


corporations aren't just legal mechanisms to let people get favorable tax treatment. They're also ways for people to do things as a group that they couldn't do individually.

Exactly. They create additional powers. Which is precisely why they do not deserve or require all of the rights given to individuals, and precisely why it is dangerous to give those rights to them.
posted by msalt at 2:54 PM on May 15, 2012 [1 favorite]


Individuals could, and can, already do that.

Right, but pre-Citizens United, non-profit corporations (like NARAL) were barred by Sec 203 of the BCRA from financing "electioneering communications."

I did want to point out that you've just expressed precisely why money-as-speech subverts the principle of one-man, one vote.

So what's the alternative? The beautiful little snowflake model of political advocacy? Not everyone is the best advocate for their own position -- sometimes it's reasonable to band together and support the most articulate and persuasive among a particular faction... which is why people band together (incorporate) to support certain causes.
posted by BobbyVan at 3:10 PM on May 15, 2012


Exactly. They create additional powers. Which is precisely why they do not deserve or require all of the rights given to individuals, and precisely why it is dangerous to give those rights to them.

Again, how do you then protect the speech of the New York Times Co. or Planned Parenthood. These are corporations. Money=speech is the problem.

Those who think money=speech is good, please explain how to tackle the issue of some people getting more speech based purely on their wealth.
posted by Ironmouth at 3:21 PM on May 15, 2012


but it wouldn't be applicable to this situation because what we're talking about are voluntary associations of citizens who come together to advance a common objective

That is a lovely set of words that could also be used to describe a terrorist group.

Citizens vs United allows unlimited secret funding of character assassination squads designed to affect the outcome of elections. It legalizes propaganda-induced culture wars, funded in secret by very powerful players, who are legally protected from any sort of accountability. If you don't consider that a threat to a free (as in liberty) and open (as in transparent) society, then maybe we are working with different definitions.

So what's the alternative? The beautiful little snowflake model of political advocacy? Not everyone is the best advocate for their own position -- sometimes it's reasonable to band together and support the most articulate and persuasive among a particular faction... which is why people band together (incorporate) to support certain causes.

We're not talking about the Brookings Institute. We're talking about attack ads that repeat lies, over and over and over, that drown out the debates, the issues, the election itself. Though it may seem impossible, it manages to degrade political discourse even further than it has already fallen.

Take a person, and I use that word in only its technical sense, like Karl Rove. He ran ads showing triple amputee Max Cleland — who gave all of those limbs in service during Vietnam — next to pictures of Saddam and bin Laden, claiming he supported terrorism. Rove is the same miserable soulless biped who denigrated Kerry for his service through the Swiftboating lies. What else do you think he'd do to win an election?

Now imagine him doing all of his dirty work in secret with unlimited money.

When political campaigns are already brimming with valueless power hungry sadists, you don't turn out the lights. At least I wouldn't.
posted by deanklear at 3:39 PM on May 15, 2012 [1 favorite]


Corporations don't have rights, they have Powers. The majority of the Supreme Court today wants the largest, most powerful corporations (and their owners, not representative of the US population) to run the US Government and save themselves from having to do an embarrassing direct intervention like they did in Bush V Gore.

Now imagine him doing all of his dirty work in secret with unlimited money.

No need to imagine, that is exactly what is happening today. And if the money power of Citizens United allows the Republican Party to take over the Legislative and Executive branches, I doubt that anybody will ever take that away via the ballot box, no Democratic Party, Libertarian Party, Moderate, Radical, Socialist or Pirate Party, regardless of how much the GOP's real base may shrink. They have learned from the mistakes they made in 2005-2008.
posted by oneswellfoop at 3:49 PM on May 15, 2012


Again, how do you then protect the speech of the New York Times Co. or Planned Parenthood?

For the New York Times, freedom of the press covers it. (And perhaps would for Citizens United, since they deliberately tried to present themselves as a filmmaking company.

For Planned Parenthood or Monsanto, by passing reasonable restrictions on corporate communications. Just because restrictions are permitted does not mean you have to ban them.
posted by msalt at 3:51 PM on May 15, 2012


We're not talking about the Brookings Institute. We're talking about attack ads that repeat lies, over and over and over, that drown out the debates, the issues, the election itself. Though it may seem impossible, it manages to degrade political discourse even further than it has already fallen.

You're making a content-based argument for restricting political speech. That is hugely problematic from a First Amendment perspective.
posted by BobbyVan at 4:47 PM on May 15, 2012


You're making a content-based argument for restricting political speech. That is hugely problematic from a First Amendment perspective.

Lies are always covered by the First Amendment. Truth, on the other hand, may fall under prior copyright.

And remember what the First Amendment is REALLY all about...

"Freedom of the press is guaranteed only to those who own one." - A.J. Leibling

and Freedom of Political Speech is guaranteed only to those who can afford to run ads.

The First Amendment does not work unless those with the resources to do so can SHOUT DOWN all other voices.
posted by oneswellfoop at 6:34 PM on May 15, 2012


and Freedom of Political Speech is guaranteed only to those who can afford to run ads.

You despair too much.

There's power in numbers. Get some comrades together -- incorporate, you could say -- and use your pooled resources to advance your agenda.
posted by BobbyVan at 7:09 PM on May 15, 2012


You're making a content-based argument for restricting political speech. That is hugely problematic from a First Amendment perspective.

I can't say it any better than the dissenting opinion. Apologies if you've read it:
The free speech guarantee thus does not render every other public interest an illegitimate basis for qualifying a speaker’s autonomy; society could scarcely function if it did. It is fair to say that our First Amendment doctrine has “frowned on” certain identity-based distinctions, particularly those that may reflect invidious discrimina­tion or preferential treatment of a politically powerful group. But it is simply incorrect to suggest that we have prohibited all legislative distinctions based on identity or content. Not even close.

The election context is distinctive in many ways, and the Court, of course, is right that the First Amendment closely guards political speech. But in this context, too, the au­thority of legislatures to enact viewpoint-neutral regula­tions based on content and identity is well settled... We have upheld statutes that prohibit the distri­bution or display of campaign materials near a polling place. Al­though we have not reviewed them directly, we have never cast doubt on laws that place special restrictions on cam­paign spending by foreign nationals. And we have consistently approved laws that bar Government employees, but not others, from contrib­uting to or participating in political activities. These statutes burden the political expression of one class of speakers, namely, civil servants. Yet we have sustained them on the basis of longstanding practice and Congress’ reasoned judgment that certain regulations which leave “untouched full participation . . . in political decisions at the ballot box,” help ensure that public officials are “suffi­ciently free from improper influences,” and that “confidence in the system of representative Govern­ment is not . . . eroded to a disastrous extent.”

The same logic applies to this case with additional force because it is the identity of corporations... Not only has the distinctive potential of corporations to corrupt the electoral process long been recognized, but within the area of campaign finance, corporate spending is also “fur­thest from the core of political expression, since corpora­tions’ First Amendment speech and association interests are derived largely from those of their members and of the public in receiving information.” Campaign finance distinctions based on corporate identity tend to be less worrisome, in other words, because the “speakers” are not natural per­sons, much less members of our political community, and the governmental interests are of the highest order. Fur­thermore, when corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser risk that regulatory distinctions will reflect invidious discrimina­tion or political favoritism.

If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not per­mitted to vote, given that voting is, among other things, a form of speech.

In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as indi­vidual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.
And that's the whole point. Corporations aren't people. They don't deserve the right to vote, or the right to sway elections with massive propaganda efforts to the left or to the right. It makes elections less about ideas and individual choice and more about money and the desires of concentrated interests, which defeats the purpose of voting in the first place. And if the government isn't allowed to defend the principles behind voting, you're not going to have a legitimate government for very long.

Worst of all, it's based on a false principle that a corporation is somehow the same as a collection of people. Internally, corporations are pure oligarchical tyrannies lacking any shred of democratic legitimacy. If we continue giving them the same rights as people, they will continue to displace government with their unearned influence, and actual people will continue to suffer for it.
posted by deanklear at 5:15 AM on May 16, 2012 [4 favorites]


> So what's the alternative? The beautiful little snowflake model of political advocacy? Not everyone is the best advocate for their own position -- sometimes it's reasonable to band together and support the most articulate and persuasive among a particular faction... which is why people band together (incorporate) to support certain causes.

Absolutely people should organize and advocate. But also, for people -- in the form of our elected representatives -- to find ways to limit or restrain money's political influence in light of the point -- which we seem to agree on -- that money can easily overwhelm other forms of political influence.

It's doesn't have to be an all-or-nothing matter, where either we somehow find a way to wholly divorce politics from the influence of money or we stand there with our hands tied while money does whatever it wants. A dollar cap on contributions is one way, but I'm sure I could think of others. More to the point, I should think that the election laws of the individual states could potentially provide a dataset for testing the efficacy of various methods.*

In light of Citizens United, it will be very difficult for Congress to attempt any sort of money-restricting election laws. I also believe, although I haven't studied it out, it will be difficult for the individual states to do their laboratories-of-democracy work on this issue, either, because states don't get to restrict speech any more than Congress does. That's part of the problem: that the Supreme Court went much further than just saying "this particular law, as written, represents an overbroad restraint without a compelling state interest."

Also, it's worth mentioning that the ACLU amicus does not touch whether the Court should overturn Austin, which act is fairly central to the Court's reasoning in Citizens United.

*It is probably difficult to state a testable hypothesis about money vs. other forms of political influence, but I'm not a social scientist and am kind of just assuming that there are people who could do the heavy lifting on this point.
posted by gauche at 6:44 AM on May 16, 2012


Unleash the Hounds: Why Justice Souter should publish his secret dissent in Citizens United.
posted by homunculus at 3:29 PM on May 16, 2012


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