Speech, unburdened: Citizens United v. FEC

by Mike on 1/21/2010

in First We Kill All the Lawyers, Mob Rule, Perpetual Beta : Release

The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.

Citizens United v. FEC 558 U. S. — (2010) [PDF]

The Supreme Court’s decision striking many of the regulations of McCain-Feingold has been harshly criticized by proponents of campaign finance restrictions. Some have even called it the “worst decision since Dred Scott.” But when you actually read it… well, it’s pretty well-reasoned.

The part of the decision that has drawn the sharpest criticism is, ironically, the least controversial from a legal standpoint: the notion that corporations are “persons” under our constitution, with constitutional rights that the government may not infringe. This idea, controversial on this day the opinion was released, has been established as a matter of law since at least 1885. (I was too lazy to search beyond that.)

So why the outrage? Corporations are easy to hate. “Money in politics” is easy to hate. For some people, any conservative legal thought is easy to hate. (Free speech for me, but not for thee…) The ends – reducing the influence of the wealthy on political debate – justifies the means – legally prohibiting core political speech.

Now, at least for a little while, speech can breathe a little bit freer.

  • http://stopbeingbroken.com/ Bryan J Busch

    What do you personally think? I understand that precedence is what it is, and that you think the case is well-reasoned.

    But do you agree that corporations are a kind of person, and that money is a form of speech? Do you think this won't have amazingly big implications for elections in the future, and that personal campaign donations will never be able to stand up to the money spent by corporations?

    Do you think that when a board of directors, or a CEO, decides to spend the corporation's money toward a political cause, that every single employee of the corporation would support that decision?

  • http://perpetualbeta.com/release/ mikewas

    >But do you agree that corporations are a kind of person, and that money is a form of speech?

    Yes, from a legal perspective, and yes, money spent to spread a message is protected speech. (This case does NOT allow for direct contributions to candidates)

    >Do you think this won't have amazingly big implications for elections in the future, and that personal campaign donations will never be able to stand up to the money spent by corporations?

    No, because big corporate money already finds its way into the political discourse. This case, in my view, most helps those who cannot afford to hire election-law specialists to determine whether their planned political statements might run afoul of the government's approval and therefore subject them to potential criminal penalties. Frankly, campaign finance laws benefit the wealthy, the powerful, and the incumbents, by making it harder for challengers to raise money, and harder for the less powerful to engage in collective action. I never understood why liberals tolerated this immense government scheme to restrict all but pre-approved political speech.

    >Do you think that when a board of directors, or a CEO, decides to spend the corporation's money toward a political cause, that every single employee of the corporation would support that decision?

    No. I don't think that's relevant. It's not the employees' money to decide how to spend, unless they're shareholders.

  • http://perpetualbeta.com/release/ mikewas

    > …money is a form of speech?

    Bryan, upon further reading of the opinion, it's important to note that the law struck down by Citizens United did not prohibit spending money. It prohibited “communications” which were meant to advocate a particular issue or candidate. The money doesn't factor in.

    Also, as I think I've obliquely mentioned before, the First Amendment, by its terms, doesn't protect speakers, it protects speech: “The identity of the speaker is not decisive in determining whether speech is protected.” Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 8 (1986)

Previous post:

Next post: