Tuesday, January 31, 2012

My long-simmering Citizens United rant

It appears that I have never once blogged about Citizens United. But I really need to because I am fed up. There are legitimate issues to discuss in connection with this case, but so many people have gotten caught up in yelling the "Corporations aren't people!" mantra, we aren't even close to discussing the real issues.

First and foremost, let's be really clear about something. The Supreme Court did not say corporations are people. Not once. I promise you. I have read the majority opinion more than once. If you don't believe me, though, go read  it for yourself. They didn't say it.

But here's the bigger point that everyone refuses to acknowledge. People get so caught up in how ludicrous it sounds to them to treat corporations as if they're people that they miss the obvious. The First Amendment doesn't apply solely to individuals! Long, long before Citizens United, it was understood that corporations and collectives of people could speak and that Congress couldn't censor that speech. This wasn't some new, radical departure in First Amendment law. When people really stop and think about that, they have to see that. In the majority opinion, by the way, there's almost no discussion of any of this. There is a conclusory statement that, duh, the First Amendment protects corporations. Then there's a paragraph-long string cite, where the court lists something like 20 cases throughout  history that acknowledge this basic fact.

From the plain text of the Amendment, I don't understand where anyone got the idea that freedom of speech is a right that belongs solely to individuals. The text says  that Congress shall make no law abridging the freedom of speech. That's it. It's all about telling Congress they can't censor speech and doesn't limit in any way who the speaker has to be. (In his zeal to argue with me on this point, I once had someone insist that the right of assembly is a purely individual right. So, as I pointed out to him, does that mean that Congress can't prohibit individuals from attending Communist Party meetings but could prohibit the Communist Party from holding said meeting? He insisted no, because that would infringe on all of the individual party members' rights... So why wouldn't infringing on the speech of a corporation be unconstitutional because it would infringe on the rights of all the individual board members, shareholders, etc?) But I digress.

People are so incensed about the way that corporate spending is affecting elections, they seem quite willing to reach the conclusion that the right of free speech is limited only to individuals. But, geez, that would be an absolutely disastrous outcome. Our voices always become more powerful when we can find other like-minded individuals to speak beside us. We form collectives. We organize into groups. That's how we have advocacy groups like the NRA, Amnesty International, etc. The First Amendment prohibits Congress from censoring these groups. Of course it does. Would anyone really want it any other way?

Ok, so the Supreme Court didn't say corporations are people and it would be really devastating to freedom of speech if it were purely a right of individuals. So when complaining about the effects of Citizens United, can we please, please get past this nonsense?

We could perhaps talk about equating campaign spending with speech, though that's not a new concept either and I happen to agree with the Court's interpretation of it. Freedom of speech doesn't mean much if you're prohibited from spending money to get your message out. Sure, repeat your message, just don't print up flyers that you had to buy paper and ink for. And don't think about sending things out through the mail because we can't allow you to spend money on postage. If we can prohibit a speaker from using money to get out his/her/its message, we're pretty much limiting people to standing on a street corner and shouting. But without a bullhorn, because that would cost money.

No, the real battle in Citizens United was whether Congress identified compelling state interests that would justify the infringement on campaign spending. This is to me where the majority opinion is vulnerable. And perhaps the evidence gathered in the two years since the decision was issued might have persuaded a judge or two that the spending ban really was necessary to even the playing field or prevent corruption, etc. I still suspect, though, that a majority of the court would have found the law unconstitutional because it was a total ban on spending in the 60 days before a general election (and 30 days before a primary). It's a pretty high hurdle, as it should be, to convince a court that a total ban on speech is constitutional.

The real and proper response to Citizens United is for Congress to go back to the drawing board and try to come up with a different campaign finance law that would pass constitutional muster. They can find some guidance in that decision. The rest of us who are appalled by the effect of money on elections, especially the big PACs that can be funded by just one or two gazillionaires, can support our representatives and senators in that effort. But we're never gonna get there if we keep ranting that corporations aren't people and money isn't speech. Please, for the love of all that is good and pure, can we please get past those shouting points and get to the real issues?

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