Law in Contemporary Society
I've rearranged this page so that our 100 word responses to the opinion are at the beginning. The conversation we had before reading the opinion is below. Art and Sam, when you guys add your responses, just put them under mine. I've also included the link that Glover posted in this section.

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100 word submissions

Here's my submission:

I fear the functional effects of the ruling. First, I believe the anti-distortion interest identified by the Court justified the FCRA, which restricted the ability of organizations to advertise directly for candidates through independent expenditures around election times. I am persuaded by Stevens that the FCRA did not restrict the free speech of any natural person. Secondly, products sold by corporations are now endowed with newly political significance. Some money from my purchases goes to corporate treasuries, which can now fund advertising supporting candidates in elections. Disclaimer and disclosure protections are inadequate to prevent consumer confusion resulting from this.

Also, here are my case notes. Nate, if you slap yours on the same page this one won't get any more cluttered.

http://emoglen.law.columbia.edu/twiki/bin/view/LawContempSoc/CitizensUnitedCaseNotes

-- AndrewCascini - 05 Feb 2010

“The appearance of influence or access will not cause the electorate to lose faith in our democracy.”

It is this kind of declaration that gives me the impression Kennedy is trying to rationalize a conclusion he already reached. He admits that the government can limit speech, but he concludes potential political corruption does not warrant such limitations. But instead of explaining why this qualify, he just cites a report that didn’t find any examples of “votes being changed for expenditures.” It seems to me that the best place to examine the potential for corruption and other effects of this holding would be the legislature. I remain unconvinced that the Court needed to overturn a century of legislation to protect this invented form of speech.

-- NathanStopper - 06 Feb 2010

In Citizens United, the Court answers a question no one asked. The Court directed the parties to reframe their positions so that it could evaluate two previously unmentioned cases.

After filing their revised briefs, both parties pointed out to the Court that it could easily avoid overturning those cases by applying a de minimus rule to the immediate case. This would exempt Citizens United from 441b because only a tiny fraction of its funding actually came from for-profit corporations. Justice Stevens, in his dissent, points out at least three additional ways in which the Court could have made a more narrow holding. However, the Court dismisses these arguments, blows past a century of precedent, and chooses to overrule the cases anyway.

Central, of course, to their ruling is that corporations are protected under the First Amendment, and that they are no different from wealthy "natural persons" (except for limited liability, perpetual life, etc; also they can't hold office or vote... yet). The Court obviously had an agenda with this case, and that is what is most upsetting. Whether you agree or not with the outcome, the Court essentially asked themselves a question, and answered it by overruling the holdings of dozens of cases and Congressional Acts dating to 1907.

non-100 word version

-- ArtCavazosJr - 12 Feb 2010

I appreciate Stevens's reminder that the limitations posed by 203 were narrow in scope. I agree with his concerns that corporate speech could "drown out" non-corporate speech. However, I must agree with Kennedy that the greater danger is government's attempt to limit select speakers and means of communication. Although Stevens observes that Kennedy overlooks the ways in which government already limits such speech, I do not think that the existence of such limitations justifies the threat posed by broader deprivations. My belief in free speech may be too absolute, but I fear its restriction more than its excess.

-- SamHershey - 12 Feb 2010

 
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The original post that started this conversation

How do you guys feel about this decision? Although I haven't read the actual decision yet, I can only imagine how the holding is going to destroy any chance this country has of holding fair elections in the future. I don't really know too much about First Amendment law, but I am outraged that the Supreme Court has forfeited our democracy to uphold such an absurd principle. If anyone ever meets a corporation, please let me know.

-- NathanStopper - 23 Jan 2010

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Responses to Nate's post

Nate,

This is my first responsive post on this site, so I do not know if it will even come up under your topic. In the hope that it does, here is my answer to your open question.

Your comment is aimed entirely against corporations, but you need to remember that the Court's ruling applies not only to corporations, but also to labor unions and not-for-profit organizations. (Citizens United was itself a not-for-profit group.) Labor unions and not-for-profit organizations can be just as self-serving as corporations. Would you have supported the Court's ruling if it had included unions and not-for-profit groups but excluded corporations?

Moreover, I cannot see why the individual members of those groups, in their capacity as private citizens, should be able to fund political advertisements while the corporations that comprise them should not. If a CEO wants to fund an ad campaign with his private wealth, should he be allowed to do so? Why does he lose that right in his public capacity as CEO? As with all decisions CEO's make, he is liable to be removed if his company's shareholders disagree with his judgments. Why should political endorsements be different?

Ultimately, the purpose of groups like unions, not-for-profits, and corporations is to give greater power to their members beyond what they could accomplish individually. Collective bargaining is such a power. The ability to make meaningful political endorsements is another. I do not know why an arbitrary limit should be placed on these groups' vital functions.

-- SamHershey - 02 Feb 2010

Sam, I hope you don't mind I moved your comment here so the conversation could flow a bit more smoothly.

In response to Nate, I started reading the Citizens United decision, but of course I gave up and got back to reading for class because the "decision" is hidden in a 183-page PDF you can find here. So like 99.9% of the population my knowledge comes from secondary sources. I doubt few if any of us here at Columbia Law School have actually read the decision. Who would? It's "legal fiction" anyway right? Who has ever met a corporation? But that's not what's wrong with this case. There are all sorts of fictions we accept daily as integral parts of our lives. In fact, I would say that artifice is the defining factor of our culture. Our clothes are synthetic, our food is processed into the unrecognizable lumps of meat/cheese/etc. we buy in shrink-wrapped packages at artificial community pantries called supermarkets, and our entire society is based upon the greatest legal fiction of all, property rights.

So why (and how could we) pick and choose? Which legal (and other) fictions will we choose to recognize and which will we choose to deplore? The answer is obvious, and I believe it's what Sam was getting at (though Nate never mentioned unions or non-profits and it goes to show the dichotomy of our society, and you only see such clear dichotomy in artificial systems) that we will choose to adhere or deplore those fictions depending on whether we like them. On whether we agree with them. Often, on whether we can identify with them.

Personally, I don't want all the political power consolidated in corporate interests. Besides the fact that concentrated decision-making power in any small number of human beings has proven time and again to be disastrous, there's the fact that I'm not part of that group. And I don't want to be. But beyond these two facts, what reason do I have to think that giving corporations the right to pour as much money into the political process as they want is a bad thing? After all as Sam said, "If a CEO wants to fund an ad campaign with his private wealth, should he be allowed to do so? Why does he lose that right in his public capacity as CEO?"

My gut response is to say that we lose all kinds of rights in our public capacity as anything. Anyone who lights up a piece of crinkled paper filled with the wrong sort of plant or goes for a stroll on the wrong patch of land will find out real quick that they lose their rights to do certain things in a public sphere. But I'm going to assume that there is no obvious reason a CEO should not be able to plunder his company's coffers to finance political candidates he feels will benefit him. And I'm going to assume that average CEO tenures aren't less than 8 years and that they actually care about the long-term viability of their companies and the pockets of their shareholders. And I'm going to assume that most shareholders know more than nothing about the political contributions of the companies that their 401k or other retirement plan invested in for them, and I'm going to assume that if they don't agree with those contributions there is some avenue of recourse they could use to do something about it. And if I assume all of these things it is still a bad idea because, like Sam said, the purpose of unions and corporations etc. is to give greater power to their members beyond what they could have accomplished individually. And until the idea of a corporation becomes more than to maximize the wealth of its shareholders (read: squeeze as much output from as little input as possible, using genetic engineering on chickens and corn, exploiting cheap immigrant or out-sourced labor, lending in a predatory fashion, etc.) giving that particular "group of members" greater power is a very bad idea.

-- ArtCavazosJr - 02 Feb 2010

I agree with both Art and Sam that power is central to this debate. Giving corporations the freedom to support political candidates troubles me greatly; a CEO, rich though he may be, is not nearly so powerful without the heft of a corporation behind him (or her). As Professor Tierney mentioned today at the Citizens United panel, we all know that corporations have long been financing campaigns in one way or another. But I fear the practical consequences of this decision. I fear that political candidates, once elected, will find themselves beholden to the wishes of their corporate sponsors rather than their constituency. Is that freedom? What happens to free speech when one voice silences all the rest?

To assert that a corporation is a person without discussing the practical effects of that assertion is to descend into formalism (a la "where does a corporation reside?" etc.). To Sam's point, it does seem arbitrary to allow corporations and labor unions to act collectively in some instances and not in others. But don't we have to take into account the nature of those instances, and what the consequences of collective action are? I think the acknowledgment in the Austin decision (which Citizens United overruled) that "corporate wealth can unfairly influence elections" still holds, and should outweigh any inconsistency in the case law.

-- CarolineFerrisWhite - 03 Feb 2010

Art, thank you for your response and for moving my post to its appropriate place. I think you raise some interesting points about artificiality in our society. I also agree with your extension of my analysis that we all (myself included) often choose which Court opinions we agree with not on the basis of abstract theories but simply on the basis of whether we dislike the people whose rights are affected. I do not impute these feelings to Nate, but I do maintain that many people who opposed the Citizens United decision would have been delighted by a decision that exclusively (rather than inclusively) freed labor unions to spend without limit. One cannot cherry pick which entities deserve free speech and which do not.

Caroline, thank you, too, for your insightful comments. Just to be clear on this point, would you embrace the Austin decision if it had asserted that "labor union wealth can unfairly influence elections"?

Your answer to that question may well be yes, but even so, I think there are real problems with the Austin argument, namely that it is vague. What is an "unfair influence"? Equally troubling, who gets to decide?

Your fears about government corruption are legitimate, but campaign-finance legislation can have its own corrupt motivation. Incumbents already hold an almost insurmountable advantage in elections. There are no term limits for members of Congress or for elected judges. Isn't it troubling to enable them to legislate (and uphold) limits on how much can be spent to unseat them?

-- SamHershey - 03 Feb 2010

The worry that I have about the decision isn't so much the direct effect that most people here are discussing - that is, the fact that corporations are now free to endorse candidates through the media because, the majority tells us, money is speech. That may or may not have disastrous policy implications, but there's a secondary effect as well: the products that we buy from these corporations now have inherently political implications, and we can't know the ramifications of these implications at the time that we spend money.

Consider this - you're an American choosing which car to buy. Whereas before you might have made your decision based on the safety rating of each vehicle or perhaps because of the interior or the innovative ergonomic technology, now you're forced to consider the ramifications that your purchase will have on the discretion of the car company that you choose to buy from to influence elections. I really like the Focus, but I don't have health insurance. Will Ford spend money endorsing a candidate who opposes health care reform?

I like to think that I make my consumer decisions rationally - that is, by weighing the positive effects against the negative effects the product will inflict on my life and then measuring the sum of that effect against the money I'll have to spend in order to buy it. Now, though, there's a shrouded, mysterious political element to my choice that I am aware exists but that I cannot reliably predict.

You might argue that this has always been the case. After all, individuals have always been able to donate to political campaigns, and the CEO of Ford has always had an increased ability to donate whenever I decide to sign for that Focus because a portion of the money that I pay for that car goes to him. However I might argue that while the effect may not be new, this inherently political character towards product purchasing has now been greatly magnified.

Of course, you might make the counter-argument that this could lead to the democratization of corporations. If consumers began to make choices on which product to buy based upon the election spending that the company would make, corporations might, you could argue, begin to spend only in ways that their consumer base would support. I would argue, however, that this is unlikely. Most consumers won't know about the ability of corporations to make political advertisements with the money given to the corporation from the consumer, and many consumers who do will probably not change their behavior substantially.

-- AndrewCascini - 03 Feb 2010

Andrew, I appreciate your response, but on a fundamental level I really do not see how the issue you raise is a legislation-worthy problem. Some adults will fail to do their due diligence and will give money to companies that support causes they disagree with. Therefore Congress needs to step in and protect them from themselves?

-- SamHershey - 03 Feb 2010

Just to expand a little on what I just wrote, what I find troubling about your argument are its paternalistic implications. Remember that political contributions are all open and documented. Anyone can find out what causes companies support. Also keep in mind that boycotts occur all the time against companies that take controversial positions. (Note the ongoing boycott against Whole Foods since its CEO openly opposed universal health care.) It is true that some people will fail to do their homework and will embarrass themselves by supporting their opponents. But how much can those people claim really to care if they didn't even take the time to do their due diligence? And is it really the government's role to save us from embarrassment and frustration?

-- SamHershey - 03 Feb 2010

First of all, I'm glad to see so many comments up on this topic. One thing that I feel is lacking at this law school is open debate among students about relevant contemporary politics, legislation, and judicial decision (which Eben would say are actually all the same thing).

My initial response to the comments that have been posted is to note that I would not be in favor of this ruling if it just extended to labor unions. They, like corporations, are not people and I don't believe the First Amendment extends to them. However, I think the labor union question is something that people are using as a way of attacking the positions of individuals who disagree with the decision, while missing what I see as the essence of the issue. Labor unions are being raised up as a counterweight to corporations because people assume that they will take opposite positions, and will therefore cancel each other's money out. Aside from the obvious point that labor unions have a tiny percentage of the money that corporations do, it fails to address my main concern.

For me, this decision is not about corporations swinging elections towards Republicans or unions swinging them towards Democrats. It's about more money entering an already corrupt political system. It's about the dilusion of our democracy to an unacceptable point. Democracy is about people being able to contribute equally to a decision to elect candidates, and while this decision obviously doesn't change the principle of "one person, one vote," it is going to allow wealthy individuals, corporations, unions and other organizations to influence the electorate in ways that others cannot.

Things are what they do, not what they say they are. This decision will bring even more money and undue influence into our electoral system. It is rationalized as a victory for free speech, but do not deny that it will change politics in America. Our system is already deeply flawed, but I cannot see how this decision will do anything but make the problems even larger.

I've got to run off to class, so consider this a work in progress as I'd like to get back to it tonight.


Sam,

Two comments. First, whether or not this is a "legislation-worthy problem," my main goal was merely articulating what I consider to be a significant and necessary consequence of the ruling. If we're going to fully consider the implications of the decision - I think that was Nate's original goal - we should consider the indirect implications of the ruling as well.

Just the same, though, you bring up a good point - one that definitely deserves some discussion.

You mention paternalistic implications of controlling corporate campaign finance. I think that using the term paternalism here is a bit of an unfair rhetorical device if you're using it as I understand you to be using it. I think of paternalism as being when an entity with power restricts or forces the behavior of an entity with less power, usually with the justification that the restriction or force is for the lesser power’s best interest. By "paternalistic implications” I'm assuming, then, that you mean you're objecting to the notion that the government can restrict how a corporation spends money to advertise for political candidates, thus making a decision about how a corporation spends its money and therefore how it exercises its "speech."

I might argue, however, that another interpretation of what the government is doing through the now-defunct attempts to limit corporate campaign finance is preventing corporations from acting in a paternalistic way themselves towards the public. By using their vast treasuries to saturate the market with direct candidate supporting advertising, corporations could be said to be the ones who are truly restricting the liberty of choice on behalf of the people. The government isn’t the only body that can exert its greater power over a mass of those with less power, is it?

I also have a few other smaller comments to make here. You mentioned that political contributions are all open and documented, and thus that anyone can find out what causes companies support. But isn't this still a problem, because the "company supporting something" is itself a legal fiction? The company doesn't support anything - it's not a person. Ford does not prefer Obama to McCain? or the other way around. The board of directors might, but that's even more uncertainty for voters to consider when they're trying to decide how to spend their money because the corporation's directors will change. Hope you didn't forget to read the Economist before you went to the dealership today. Didn't you hear? Ford's chief operating officer was replaced this morning. The new guy loves universal health care, and will now tip the board of directors towards advertising for the Democratic candidate this time around. Too bad you're happy with your insurance and just bought that Taurus, giving the board another $3500 to fund TV commercials - should have done your homework.

Now, Sam, I’m really not doing your point justice, and for that I apologize. I’m overstating my point for effect. But let’s look at campaign financing using the functional approach – what does this decision DO for elections? It would be tough to dispute that money wins elections, and now small groups of actors in control of corporate treasuries can flood much more money into the process, meaning that these small groups have more sway. I think we’d agree with this, but where I suppose we disagree is what to do from that point. You say preventing this flow is paternalistic. I say that preventing it makes the already filthy political process at least at little cleaner by not allowing corporations and unions as much ability to effect elections.

Believe it or not, I actually agree with the Court’s decision from a doctrinal point of view. If you force me to operate with the premises that corporations are people and that money is speech, then I don’t see how you can restrict a corporation’s ability to directly spend money on campaign ads. But if I sweep the legal fiction aside and think about the direct ramifications of the ruling, then I can’t stand behind it for the reasons I’ve already mentioned.

-- AndrewCascini - 03 Feb 2010

So have any of you, in the course of writing all this blather—all of which is at least three times longer than it should be—actually read the case? Or do you think that at some point standards in law school are going to be reduced to a level at which talking about cases you haven't read ceases to be a firing offense?

Giving legal opinions off the top of your head is professionally unacceptable. Each of you is hereby assigned to read Citizens United, in which you are interested, and to write not more than 100 intelligent words about it to replace the discussion presently here.

Assigned to Due date Description State Notify  
AndrewCascini Fri, 12 Feb 2010 Write 100 words about Citizens United v. Federal Election Commission after reading the opinions. EbenMoglen edit

Assigned to Due date Description State Notify  
SamHershey Fri, 12 Feb 2010 Write 100 words about Citizens United v. Federal Election Commission after reading the opinions. EbenMoglen edit

Assigned to Due date Description State Notify  
ArtCavazosJr Fri, 12 Feb 2010 Write 100 words about Citizens United v. Federal Election Commission after reading the opinions. EbenMoglen edit

Assigned to Due date Description State Notify  
NathanStopper Fri, 12 Feb 2010 Write 100 words about Citizens United v. Federal Election Commission after reading the opinions. EbenMoglen edit

Ouch! Well, I earned it.

Hey, I'll put up my reading notes after I'm done in case anyone else wants them. I make those while I sort through cases if they're long (and this one is) because otherwise I can't keep anything straight.

-- AndrewCascini - 04 Feb 2010

I haven't read the decision yet, so in lieu of a legal opinion, I'll stick with link to a blog post by Marc Ambinder entitled The Corporations Already Outspend The Parties.

-- GloverWright - 04 Feb 2010

I guess we did deserve it. I'll add my notes as well.

-- NathanStopper - 05 Feb 2010

 

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