Saturday, January 23, 2010

Citizens United and bans on corporation speech

A few days ago, the U.S. Supreme Court handed down its decision in Citizens United v. Federal Election Commission. (You can click here to see a pdf file of the Court's slip opinion; you can also click here to see blog posts at the Volokh Conspiracy that discuss the implications of the case.) As I understand the case,* the Court ruled that the McCain-Feingold Law's prohibition of campaign contributions by corporations and unions to fund "issues" ads within a given number of days before an election violates the first amendment and is thus unconstitutional. The Court also ruled that one provision, the provision that required full disclosure of which corporations donate to a campaign, is constitutional.

I should say that I agree that the ban on corporation contributions is a bad idea, regardless of its constitutionality. (I'm not sure that I follow all the legal arguments.) I say this for two reasons.
  1. Any regulation that governs when and by whom it is appropriate to spend money on a campaign involves the government in serious line-drawing and parsing of what given advertisement constitutes campaign-related speech. Such a regulation runs a risk, in my opinion, of too much government power. I'm not prepared to say such line-drawing is always wrong or even always unconstitutional (not the same thing, at any rate). It just makes me uncomfortable.
  2. Campaign finance regulations, as with most (maybe all?) regulations, increases what are called "compliance costs." In other words, the more regulations, the more a campaign has to worry about taking the right steps to comply with the regulations. This means hiring more lawyers to interpret the regulations and interpret the court decisions that clarify them (the Citizens United slip opinion for example, was 183 pages long, about 1/3 of which was the opinion of the Court, the other 2/3 being concurring and dissenting opinions: not necessarily easy for the layperson to interpret). It also means living with the uncertainty of whether one is complying with the law while the definition of an unclear term in the regulation is determined by the courts or while apparently contradictory regulations are reconciled by the courts or by yet further regulation. The effects go to favor the established parties, who can afford the lawyers and can afford to wait out the legal battles, and to make it harder for third parties or for members of one party who, for example, want to mount an insurgent primary campaign. The established parties, or those who sympathize with them, also have the luxury of seeking out apparent loopholes and facing the consequences, if ever, after their candidate has one the election. (I'm thinking of the "swift boating" ads which were apparently legal under the McCain-Feingold law and which, probably, helped George W. Bush win over John Kerry. I'm also thinking of the practice of Democrats in some states--e.g., Illinois--to use their resources to make sure the Green Party candidate did not get on the ballot in 2004, assuming my recollection is correct.)
Number 2, in my mind, is the most disturbing, and it has more, I think, to do with campaign finance regulation in general than it does with bans on corporation speech per se. To my mind, it would be better to simplify campaign finance requirements, perhaps with ample, but easy to understand disclosure requirements.

My sensibilities are offended by the fact that money is becoming / has become the main necessity in running an election campaign. They are also offended by the fact that a large conglomeration of capital invested in a corporation or a "political action committee" can exert so much influence in an election. It is also probably true that insurgent campaigns aren't likely to benefit from corporation contributions. But making that does not lessen the "due diligence" that a sincere, yet underfunded, campaign is required to exercise to demonstrate that it is complying with the law.

*Disclosure: I have not read the case. I have only skimmed the headnotes/syllabus and read a few of the blog posts at the Volokh Conspiracy.

UPDATE 1-23-10: D. A. Ridgely at Positiveliberty has an interesting post on the implications of the Citizens United decision. In one paragraph, although not directly related to the main point he is making in the post, he states my concern #1 above more clearly than I did (click here to read the post in full):
The 5 to 4 decision is disheartening to those who believe that corporate, union, etc. political spending unduly influences the political process, and it may come as a surprise to some readers here that I am not entirely unsympathetic to their concerns. Because corporations and unions and, hell, even political parties are not, themselves, really persons, I see nothing inherently wrong about curbing their political spending.

Alas, in practice it becomes impossible to draw an enforceable line that can be defended vis a vis the sort of personal, individual free speech the Constitution clearly does attempt to protect almost absolutely. For that reason, on balance I approve of the ruling. Even so, although I have not read the lengthy and, I’m told, impassioned opinions, the underlying issues aren’t nearly as simple or easily answered as many proponents and opponents of efforts to control campaign spending would have us believe

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