Campaign Finance Deform
I hope someone who knows more about this will soon post a more thoughtful analysis, but in the meantime, yuck.
UPDATE: After doing a little more thinking on this, but with the disclaimer that I still have not read the opinion, here are my rudimentary thoughts:
The argument emerging from backers of the opinion seems to be that money has long been legally equated with speech (can we get a fact check on that?),1 so this is a win for the First Amendment. Maybe that's the Supreme Court responding to James' and my poorly constructed jokes at the expense of Originalism? If so, I apologize. Since it's a 5-4 opinion, I have to assume the issue is not quite that clear-cut, and I understand that the opinion goes much further than the facts required, not that I often complain about such things. Legally, the issue seems debatable.
Politically, however, it couldn't be clearer. This is a win for Republicans, as long as they remain the party of corporate America (keep trying, Senate Democrats). Yes, Unions can also contribute (at least for the duration of their lingering relevance), but I think we all know who has the biggest money stick. Not surprisingly, many conservatives have come out in favor of the decision. I don't blame them.
What does bother me, however, is when they pretend this is going to balance the political process. Ladies and gentlemen, I give you John Boehner:
The only benefit of putting these donations on the books is that it gives candidates one or two extra points to score in a debate--"My opponent would like you to believe biodiesel can work, but his campaign took X Million Dollars from Con Agra this year!" Great. This might mean something if it was not immediately followed by, "My opponent is only saying that because he received N Billion Dollars from Exxon-Mobil!" The fact is that when everyone is dirty, it doesn't matter where you shine the light. And with so many deep-pocketed corporations diving head-first into the political process, no one is going to get through an election without taking the money. Democrats will get enough to play, while Republicans rake in enough to win and then build some spaceships.
Constitutionally, this might be a split decision. Politically, it's a landslide.
UPDATE: After doing a little more thinking on this, but with the disclaimer that I still have not read the opinion, here are my rudimentary thoughts:
The argument emerging from backers of the opinion seems to be that money has long been legally equated with speech (can we get a fact check on that?),1 so this is a win for the First Amendment. Maybe that's the Supreme Court responding to James' and my poorly constructed jokes at the expense of Originalism? If so, I apologize. Since it's a 5-4 opinion, I have to assume the issue is not quite that clear-cut, and I understand that the opinion goes much further than the facts required, not that I often complain about such things. Legally, the issue seems debatable.
Politically, however, it couldn't be clearer. This is a win for Republicans, as long as they remain the party of corporate America (keep trying, Senate Democrats). Yes, Unions can also contribute (at least for the duration of their lingering relevance), but I think we all know who has the biggest money stick. Not surprisingly, many conservatives have come out in favor of the decision. I don't blame them.
What does bother me, however, is when they pretend this is going to balance the political process. Ladies and gentlemen, I give you John Boehner:
"I think the Supreme Court decisions today are a big win for the First Amendment and a step in the right direction," said House Republican leader John Boehner of Ohio. In his view, the Constitution's protection of free speech extends to campaign contributions. No organization — business, union, whatever — should be limited by the government, Boehner said. Instead, he wants groups to disclose every dollar they spend on campaigns. "Let the American people decide how much money is enough," he said. "Sunshine really does work if you allow it to."I disrespectfully disagree. While this might sound like increased transparency in theory, in practice, any such effect will be completely drowned out by the endless hours of bullshit pouring out of your television this November. The number of Americans who value their vote enough to look into who paid for the ads is miniscule compared to those who will swallow wholesale anything that comes out of their magic demon box during The Ghost Whisperer.
The only benefit of putting these donations on the books is that it gives candidates one or two extra points to score in a debate--"My opponent would like you to believe biodiesel can work, but his campaign took X Million Dollars from Con Agra this year!" Great. This might mean something if it was not immediately followed by, "My opponent is only saying that because he received N Billion Dollars from Exxon-Mobil!" The fact is that when everyone is dirty, it doesn't matter where you shine the light. And with so many deep-pocketed corporations diving head-first into the political process, no one is going to get through an election without taking the money. Democrats will get enough to play, while Republicans rake in enough to win and then build some spaceships.
Constitutionally, this might be a split decision. Politically, it's a landslide.
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1 (Patrick): Fact checked at comment ten (7:59 a.m.)
posted by Dan at 10:03 AM
34 Comments:
Now, instead of getting around these rules via various loopholes, it will be wholly apparent that big business buys the elections in the US.
Haha, nice silver lining? I guess?
I didn't read the opinion, but I'm confused about how corporations and unions are people that are able to speak and thus have free speech rights.
Gaaarrrr. First we invented the corporation. Ok, so somebody thought it would be cool to invest money in a company without being liable for any of the shit the company does. Then we decided that it'd be convenient to treat this thing we made up as a "person" for some legal purposes. That probably makes sense. I want my contracts with this pretend entity to be binding like they'd be on a person. But can anybody seriously defend the path dependence that supposedly binds us to giving these pretend-ities the same first amendment rights as a person!?!? I hope this makes more sense than I think it does...
Anyway, I hope everyone is questioning the assertion that there's going to be transparent accounting for campaign contributions. I doubt it will take very much effort to figure out how to funnel money through bullshit organizations with names like "the freedom initiative."
For those of us on the center-left (and I know there's a few!), this is doubly depressing. Not only does it obviously benefit conservative business interests, but it also empowers the most pernicious interest group on the left: public-employee unions. Serious education, environmental, budgetary, and governance reform will now be even more difficult.
Throw in the loss of the MA senate seat, and the now slow inexorable death of health reform due to Democratic myopia and spinelessness and, Jesus, what an awful week for the left. I want to crawl into bed until this bank tax is passed.
I'm trying really hard to find a benefit to the severe beating my party has taken this week, and all I can come up with is that Obama seems a lot more comfortable as an underdog. Maybe he'll be more effective as an instigator than a majority leader.
So I wonder who is gonna be sworn into office in January of 2013 since it sure isn't gonna be Obama.
1:16 either owns a Time Machine, or he is The Great Karnak. Throwback!
The New York Times is a corporation, and it urges people to vote for particular candidates.
Yes, according to SCOTUS, restraints on spending, at least in the political campaign context, are restraints on speech:
"As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), "it can hardly be doubted that the [First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.
. . . .
"A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech."
Buckley v. Valeo, 424 U.S. 1, 18 (1976).
There are excellent reasons to question this reasoning (e.g., free spending might hamper open discussion because it allowed the wealthy and well organized to flood the speech market . . . according to this reasoning spending restrictions are sort of like a form of affirmative action in the national discourse) and the Court's opinion in Buckley may be internally inconsistent in some respects (it also sustained a handful of spending restrictions) but at any rate "money=speech" is a line of reasoning the Court embraced long before yesterday.
FWIW, the California Supreme Court has reached the same conclusion as a matter of state constitutional law.
Thanks, Patrick.
I would love it if anyone who has read the opinions would like to offer their legal analysis. I heard the NPR take, which was that they ruled far beyond what the facts required. They compared it to Bush v. Gore. Is that fair?
I wouldn't say "NPR" compared it to Bush v Gore or said it went beyond the facts required to resolve it. Dalia Lithwick said that, and in my mind, at least, Litwick is babbling moron.
Some basic observations: this decision did not grant "personhood" free speech rights to corporations. Clearly, corporate speech is and always has been protected by the constitution, or all of our newspapers, television stations, and virtually all speech that is not, you know, just a dude sitting around and yelling at the wall
would be unprotected by virtue of the taint of corporations. There has never been a first amendment divide in terms of corporate/natural person, except briefly in relation to speech regarding elections. But in all other areas I think practically everyone agrees that there is no distinction (or do you really believe that Congress should have the power to censor the NYT or your comments here on this google-produced and paid for website?). The babbling about the personhood comes from Stevens dissent arguing that we should treat corporations differently in this one area, not from the opinion itself. Whatever the merits of that idea, the opinion broke no new ground in establishing corporate speech rights, as those were already practically universally established.
Second, there is a broad history of courts striking down speech restrictions because they are overbroad. Could the court have avoided striking down the law altogether by simply saying that the facts presented here were constitutionally objectionable? Sure, they could have. But, there is a long line of cases where the court has struck down speech-restricting legislation in its entirety because the overbreadth produces a chilling effect on constitutionally protected speech. It is perhaps open to debate whether any of the speech banned by the law in question here is constitutionally unprotected, but there is nothing overreaching about the Court striking down legislation in its entirety that is overbroad.
If you wanted to make a comparison to Bush v. Gore, I think the apt comparison is that the minority in Citizens United is the group that dropped the constitutional principles in favor of political expediency. There is no doubt that this ruling is a blow to Democrats. But I do not understand how we can manage to incorporate into our first amendment analysis what the effect of striking down a law will have on our own preferred political results (and I say that as an ardent Democrat). To me the more important principle is the protection of speech regardless of the speaker or the viewpoint. Certainly, if the klu Klux Klan is allowed to have their say, IBM should be allowed to have theirs, as well (not to mention NYPIRG, Facebook, ABC NEWS, the SEIU, the NAACP, the ACLU and whatever other corporation you may agree/disagree with).
Thanks for the analysis, 11:48. I don't immediately disagree. My post is merely about the political fallout, which is gonna suck.
Your comments got me thinking, though. With all these new tech companies, it's conceivable Dems may bring in more contributions than I initially thought. I mean, Google is or will soon be the biggest company in the world, and their ideology seems pretty far left. Thoughts on this?
I think there is a difference between the culture of a company and that company's goals vis-a-vis legislation. Google is pretty far left in terms of its culture, but in the end, it is still a business, and it benefits from the corporate-friendly legislation of the Republican Party.
Seems like it may benefit more from whichever party adopts Net Neutrality as a major platform, which kind of remains to be seen.
I do recall that Google and Apple donated a lot of money to the No on 8 Campaign, so it seems like they have some scruples.
I find myself agreeing with two main points that Glenn Greenwald made regarding this opinion:
1. Once a law is unconstitutional, it's unconstitutional. Period. It doesn't matter if its effects are good or positive or beneficial. It's unconstitutional. (Compare, for example, detaining "enemy combatants" or "suspected terrorist" in Guantanamo or warrantless wiretapping, which, while unconstitutional, may have helped protect us from terrorists.)
2. If you think this decision is opening the floodgates for corporate influence on politics, you're in complete denial about how much influence corporations have in our political system.
With that in mind, I also have serious concerns about the corporations-as-people legal fiction that we have created that buttresses the Court's analysis in this decision, and were it me, that's the precedent I would have overturned. But, having said that, I'm not about to disparage robust speech protection because I don't like what it does here.
The corporations-as-people fiction, if it were to go away, would suddenly make the vast majority of speech in this country lose constitutional protection. The New York Times would suddenly become subject to congressional censorship purely because the speaker is a corporation. Is that really what you are trying to say?
The carping over corporations-as-people should be (should be) ignored by such a fine group of aspiring lawyers. The real legal divide lies in whether the state has a compelling interest in reducing the money corporations - or anyone else - may expend in campaigns. But trying to establish some sort of corporate/natural person dichotomy is foolhardy.
Prior case law had held that individuals may spend as much money as they like promoting whatever candidate or policy they pleased, although direct contributions to candidates are capped (Buckley v. Valeo). In 1990 in *Austin* the court held that corporations could be held to a different standard when it comes to "electioneeering communications" (which seems to have gone in the face of the 1978 decision in *Bellotti* that held that corporations have the same speech rights as individuals, and frankly every other precedent where the speech rights of corporations and other entities were upheld).
So let us be clear: in vastly all other areas of first amendment jurisprudence, corporations and natural persons have the same rights. I doubt anyone here would support overturning the decisions in NYT v. Sullivan or FCC v. Pacifica purely because the speakers there are corporations (well, you might want Pacifica overruled, but not on the grounds that Pacifica's speech was unprotected and the state thus had unlimited power to censor it). It was only in this one area - electioneering communications - that there was briefly a different standard, and that goes against prior case law and, frankly, common sense.
So, if you want to attack the role money plays in elections, at least attack it on the grounds that you think the government has a compelling state interest in regulating it and not on this intellectually dishonest canard that somehow corporations or other entities have reduced first amendment rights.
5:34 (and everyone arguing that entities like the NY Times would lose their right to speak), please read carefully:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
(I even highlighted the important part for you.)
Wow, Matt, how insightful. I mean, someone should have pointed that word out to Justice Kennedy. I'm sure if he had noticed it, everything would be different.
Sometimes I see comments that I wish I could write. 11:48 & 5:34 are examples.
Wow. Way to miss the point entirely, which is: this sentence - "The New York Times would suddenly become subject to congressional censorship purely because the speaker is a corporation." - is incorrect because the NY Times enjoys press protections under the First Amendment.
This says nothing about my feelings that the corporation-as-person fiction is a good one for this purpose. In fact, I think its rights should be greatly circumscribed. (That's what I said before.) But I don't think "OMG, the media could be censored if we scale it back, because media outlets are corporations!!!" is a good counterargument.
Or, to put it more bluntly, press corporations are bad examples because they are protected by other parts of the First Amendment. That doesn't mean I disagree with the reach of the First Amendment generally - indeed, that was my starting point; rather, I think we should be more careful when crafting our arguments.
Matt, it is (to me) a very compelling counter argument, for two reasons.
First, if the test by which oversight is permissible is "corporation" then there is no neat way to categorically distinguish between "press" publications by New York Times and "press" publications from Dow Chemical. Can you think of one? We can't just say "because it is Dow Chemical," or "because it advances a corporate view." The first is classic censorship, and the second requires a value judgment about the content of the speech itself. Neither of those play nicely with the policies or with the text of the First Amendment.
Second, to say that restricting corporate speech is permissible because corporations are protected by other parts of the First Amendment doesn't help either. That's like saying people shouldn't be allowed to protest their government because they can express their views in writing.
The bottom line people want to restrict corporate speech because of the political interests that type of speech represents, or in anticipation of the political harm that speech seems likely to cause. There may be good reasons why that should be so, but I don't think those good reasons are to be found in the bare text of the First Amendment.
Matt-
If Congress may abridge the speech rights of corporations, why wouldn't they be able to abridge the press rights of corporations? Under the logic that the founders did not intend the first amendment free speech clause to apply to entities, wouldn't the same be true of the press clause, and they meant to only protect the press as meant at the time, such as citizen pamphleteers? Or did the founders, in their infinite wisdom, perceive that in the future corporations would be the "press," and thus would have favored a distinction? And if they could see that far into the future, wouldn't they also have seen there would be corporations engaging in other types of speech, and drawn the distinction that you are asking us to draw, i.e. that non-press corporations have no speech rights while press corporations do have speech rights?
Of course, the founders thought of no such thing. That's why they didn't slice and dice and make fine distinctions. They just said "Congress shall pass no law..." I think we should take them at their word: they meant *no* law. Not most laws or some laws. *No* laws.
Patrick: As someone who enjoys your posts and comments, I am more than flattered.
-11:48 and 5:34
The focus on "deep pocket" big business is missing the point. McCain-Feingold is unconstitutional because it violates MY right to free speech. I don't have the money to make TV ads or buy billboard ad space. So, I join together with like-minded people and we all throw in our 25 bucks, set up a non-profit corporation and let the world know what we think. We are the National Rifle Association. We are also the ACLU. We are pro-life, some of us, and pro-choice too. Mc-F made criminals of us if we challenged an incumbent close to the election; now we can call the SOB just what he is right up to the polls open. For once, SCOTUS got it right.
have to agree with 6:14.
it was pure political speech by partisan citizens who deeply opposed a specific candidate. if that doesn't fall within the "Congress shall make no laws . . ." language then we're all in trouble. as some else noted, the discussion should have gone no further than, "political documentary ... banned ... by federal government."
although it's understandable for people to ask "will this ruling help my side or the other side?", i'd urge everyone to take the long term view about the power of Congress to regulate pure political speech. for example, you might think about it this way: what if Ashcroft and Gonzales had had the power to enforce criminal speech laws against unions?
I agree with 6:14 and 7:22 but to be fair to Stevens, Ginsburg, Breyer, and Sotomayor, one doesn't have to characterize the MF Act as an outright "ban." The dissenters saw the Act as a restriction on means, but not ends; they saw PAC's as a permissible way to prevent the wealthy from overwhelming national discourse while also allowing them to speak freely.
There is an uncomfortable analogy to the war on terror. I feel that electronic surveillance of Americans -- even in furtherance of national security -- ought to be subject to the warrant clause of the 4th Amendment. I'm not an absolutist about the warrants clause (no one is) and I'm not an absolutist about the First Amendment (no one is), but my skepticism of government attempts to balance my well being with my civil liberties makes me think we ought to resolve close calls in favor of historical constitutional principles, and not du jour political remedies.
People can (as commenters above have done) hotly dispute both sides of the questions whether a PAC, or the timeline regulations that 6:14 mentioned, do or do not improve the integrity of the national discourse. But, like the war on terror, the closeness of the call encourages me to think that rather than attempt to refine the constitution we ought to reaffirm what we all agree is a bottom line constitutional principle. That is, after all, what a constitution is for.
Perhaps Congress could legislate around this by requiring public companies to obtain near unanimous shareholder approval before spending more than a certain amount of money om political speech.
Is there any constitutional problem with this approach that I am not considering?
What would you propose be the constitutional authority for such an action? It's not really the regulation of interstate commerce, is it? Questions of governance of corporations are state issues, not federal issues.
I'm pretty sure Congress could legislate this as part of its interstate commerce powers. Sarbanes-Oxley, the SEC itself, and numerous other corporate regulations seem to indicate that Congress has the power to regulate publicly traded companies.
This is a commercial issue because it is targeted at limiting the ways companies can use their financial resources in interstate commerce.
I've been thinking about 2:20's comment since it was posted. I think it is a clever, creative idea. I do have some jumbled thoughts.
First, I do think the statute would survive a commerce clause challenge -- particularly if it were limited to corporations traded in more than one state. That's at least as close to interstate commerce as the marijuana in Raich.
Second, I wonder if there remain two First Amendment problems. The first problem is tailoring. Because the law would burden corporation's ability to speak, the law must be narrowly tailored to a compelling government interest. Presumably that interest would be something like a level playing field in elections, but it is hard to articulate why this particular law accomplishes that goal. Intuitively we all know the answer (corporate speech distorts) but it is hard to say how this law does this without admitting that it is really the speaker and not the content we want to stifle. The second problem is overbreath and its amorphous little cousin, vagueness. It would be very difficult to define what type of speech requires shareholder approval and what type of speech does not. I can imagine scenarios where a press release from a timber company about its plans to hire more loggers is political speech in a rural election, but not an urban one. And I can imagine situations where corporate funding of "research" by a political think tank that discredits democrats is social science in an off year, but a political donation in an election year. Maybe these are questions courts and juries guided by a clearly worded statute can solve, but they certainly have me puzzled.
Third, I wonder if there is a due process problem created when Federal law allows a small minority of shareholders to control the legal rights of an autonomous legal entity, as well as the majority of shareholders. (Okay, maybe this one makes no sense . . . but what if the law's restriction on "political speech" could be read to control how the corporation behaves in litigation?)
Fourth, there is the whole "The New York Times is a corporation, too," argument. So is the NRA, and a whole bunch of other entities whose sole purpose is political speech. We can't just do away with them, but if we allow them to survive it will be hard to keep, say, Dow Chemical from donating to them while also preventing Dow from donating directly to a campaign.
Last, I don't think the statute would have a snowball's chance of passing. Unfortunately. McCain-Fiengold was a political Mount Everest, and this statute would be far, far more threatening to certain moneyed interests.
I still think is a really clever solution, though. 2:20 should write a law review article.
There's no hard and fast rule as to what is interstate commerce and what is not. There is a view that interstate commerce is whatever Congress says it is, and a view (see *Lopez* and *Morrison*) that it is somewhat less that that. That being said, the court has specified that laws relating to interstate commerce are upheld where they regulate channels, instrumentalities, or activities that bear a substantial relation to interstate commerce. Now, that may be fairly nebulous, but it strikes me that internal governance of a corporation, traditionally a matter for state law, is certainly not a channel or instrumentality, and does not exactly look like something that bears a substantial relationship to interstate commerce, particularly when its purpose is not really to regulate interstate commerce but to suppress the inclusion of corporations in the electoral process.
The federal securities laws cover disclosure related to the interstate sale and purchase of securities, and say almost nothing about governance (with a few provisions of Sarbox as an exception, which have been challenged on constitutional grounds, though there has not yet been a definitive resolution). Thus, while securities laws might require disclosure of political activities, they rareloy intrude on telling shareholders and corporations what kind of a relationship they can or cannot have. Governance is historically a state issue, not one for the SEC.
Could Congress pass the law? Congress can do whatever it pleases. But I doubt the Court is eager to approve a dramatic federal intrusion into an area typically reserved to the states, a dramatic expansion of the meaning of the commerce clause as it relates to the market for interstate securities, and furthermore allow Congress to do an end-run around its prior decision in Citizens United.
Moreover, such a law would face first amendment challenges once again. It's one thing to say corporations can't engage in "electioneering communications" 30 days prior to an election. It's another thing entirely to say that corporations cannot engage in political speech without meeting some onerous requirement that essentially eliminates all corporate political speech. Further, any way of crafting the law would arguably eliminate and/or chill a lot of speech we like. Google would no longer be able to say anything about net neutrality or censorship in China without calling a shareholders meeting. Corporate sponsorship of NPR (among other things) would probably end, along with NPR as a result. Companies would not be permitted to state their opinion on how legislation might affect their industry, leading to potentially severe consequences.
In order to avoid the first amendment challenges, you could try and narrowly define the scope of what is not permitted w/o a shareholders meeting, for example by requiring a shareholder vote for that which is required by the section 203 of the BCRA (no electioneering communications for 30 days before an election). But if you did that, you would destroy the commerce clause rationale for the law, i.e., that Congress is only trying to better align shareholder and corporate interests. So, you're caught in a catch-22.
The proposed legislation makes for fine soundbites for Chuck Schumer and the NYT editorial board, but it has no legs, politically or legally.
Is this the most constructive discussion ever on an N & B comment thread? Thanks, kids.
So are corporations counted in the "three fifths of all other persons" now? If so, Delaware will surely get a lot more representation in the House.
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