Salon's Glenn Greenwald is just about the most persistent and effective critic of money in politics today. He is among the least starry-eyed reporters studying Congress. But his essay defending the Court's judgment in Citizens United would have been better had he sprinkled a bit of the skepticism he has for Congress on the words penned by the Court. For the story of the First Amendment in the Supreme Court's hands is not quite as pretty as Greenwald would tell it.
The First Amendment, Greenwald tells us, is an absolute. It applies not to "persons"; it "simply bans Congress from making any laws abridging freedom of speech." This law plainly banned these entities -- whether persons or not -- from a freedom of speech. Ergo, this law is, and should have been found to be, unconstitutional.
Sounds good. Sounds principled. Sounds refreshingly different from anything else that happens within the reach of DC (i.e., good and principled).
But apply that same test to the following (not so hypothetical) free speech case: A bunch of doctors practice in family planning clinics. The government issues a rule that says certain doctors in certain clinics are not allowed to discuss abortion as a method of family planning. They can talk about abstinence. Or condoms. But they are not allowed to advise their pregnant patients that they have the liberty to abort their fetus.
Sounds like -- under the First Amendment Greenwald describes -- a simple case. Whether or not doctors are persons (and at least some are just mere mortals), they should have the freedom to speak. Advising someone about a legal medical procedure is among the core freedoms one would expect a Free Speech Clause to serve.
Yet in 1991, in an opinion by Chief Justice Robert's former boss, Chief Justice Rehnquist, in the case of Rust v. Sullivan, the Court found no First Amendment problem at all with the government's restriction on doctors' speech. Indeed, it wasn't even a difficult case according to the Court ("no question but that the statutory prohibition contained in § 1008 is constitutional.")
Why? How? Well the doctors at issue worked in family planning clinics that had received at least some of their funds from the government. And in exchange for that benefit, the government was free to gag the doctors however it wished. The doctors were free of course to work in a family planning clinic not funded at all by the government (for of course, there are plenty of those) (that's a joke). But so long as the doctors take this benefit from the government, they've got to live by the rules of the government, at least so long as those rules serve some legitimate state end.
So how is this case related to Citizens United? For the law wasn't applying exclusively to entities that had received something from the government. It was applying to all corporations.
But of course, corporations do receive a gift from the government. The government limits the legal liability of investors in that corporation in exchange for their risking their capital to spur innovation and growth. That benefit is significant. And the First Amendment question is whether in granting that benefit, the state would be free to limit the political advocacy that corporations engage in.
It seems astonishing to imagine the state couldn't. State law has historically had wide freedoms to condition the corporate form as they wished. This fact has led some, including my colleague, Sina Kian, to argue that Citizens United is less than people think. That the decision notwithstanding, states could build this limit into their corporate charters. Or that maybe even Congress could induce states to do the same. The question then would be the reason the government had for demanding the entity give up this liberty in exchange for the corporate form. Traditionally, the burden of that question is the easiest for the government to meet -- is there any state interest at all? In Rust, the interest was that that government didn't like abortion.
But I agree with Greenwald that there is something unseemly in the idea that the government could restrict the speech of a class because it doesn't like the speech of that class.
Yet this is the most confused part of the commentary (and reaction) of most to this kind of regulation. If the government's reason for silencing corporations is that they don't like what corporations would say -- if it thinks, for example, that it would be too Republican, or too pro-business -- then that's got to be a terrible reason for the regulation, and we all ought to support a decision that strikes a law so inspired.
That, however, is not the only, or the best, justification behind the regulations at issue in Citizens United. Those rules not about suppressing a point of view. They're about avoiding a kind of dependency that undermines trust in our government. The concentrated, and tacitly, coordinated efforts by large and powerful economic entities -- made large and powerful in part because of the gift of immunity given by the state -- could certainly help lead many to believe "money is buying results" in Congress. Avoiding that belief -- just like avoiding the belief that money bought results on the Supreme Court -- has got to be an important and valid interest of the state.
If the Court really means to say that entities that fund or create other entities can't limit the power of those entities to speak -- so the government can't stop doctors from talking about abortion, or the IRS can't stop non-profits from talking about politics -- then we really have crossed a Bladerunner line. For that conclusion really does mean that these entities were "created with certain unalienable rights," even though they were created by a pretty pathetic creator -- the state.
My point is not that the state's power to condition should be unlimited. The point instead is that it's not so simple, or absolute, as Greenwald would have it. And given the true complexity of these evolving and complicated doctrines, it is certainly fair to be critical in the extreme of this decision by the Court, favoring speech that most believe it naturally likes (unlike abortion-speak), in a decision that ignores the judgment of Congress about the conditions under which the integrity of that body, or any election, proceeds.
If they actually carry through with the implication it seems to suggest, then history will certainly judge this as an outlier in the Court's portfolio. Not, Keith Olbermann notwithstanding, on the level of Dred Scott. But certainly in the house of Lochner.
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"But so long as the doctors take this benefit from the government, they've got to live by the rules of the government"
I am now reading a certain rule of the government. Allow me to quote:
"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."
The "rule of the government" is that there shall be no "abridging the freedom of speech." Seems pretty obvious to me that the government broke its own rule here; the doctors aren't under any obligation to keep quiet. How can there be any argument otherwise?
Free speech has never been an absolute. If I yell too loudly, I can be charged with disturbing the peace. If I swear on the radio or TV, I can be fined or taken off the air. If I say I’m going to commit some terrorist act or assassinate a government official, I’ll be arrested right away. There are slander and libel laws, copyright laws, I could go on and on. Treating free speech as an absolute is completely wrong.
A corporation is an artificial entity, created by people, governed by laws and rules. This is simply the Supreme Court changing the rules to give corporations more political power. It has nothing at all to do with the first amendment. That is just an excuse for the transfer of power from people and to the biggest corporations.
Corporations are legal fictions. They're entities created to contain liability. They weren't created to be "persons." But—now they are! Pinocchio has evolved! Foreign interests magically obtain the benefit of Constitutional protections by "associating" with US entities (not even "associating with citizens," just "entities!")
And the First Amendment, which I thought guaranteed citizens freedom of political speech, now just guarantees "speech" which means "entities" can overwhelm and drown out citizens' political speech, because if it were some kind of citizen's "right" it would be in the Constitution—Right?!
But—tell me again. How did legal entities constructed to reduce liability gain unintended and unspecified "rights" becoming persons all on their own?! And how does the First Amendment come to be about impeding the political speech of ordinary citizens by giving preferential treatment to the monied.
And while you're at it if you could explain how media buys became speech instead of commerce I'd appreciate it. Then maybe I too could appreciate the fine points of precedent in your alternate reality.
"...this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy."
The reasoning goes like this:
1. It's perfectly OK for elected officials to grant access and influence based on speech that they hear--that's the marketplace of ideas at work, it's what we want.
2. Corporations speak with their "independent expenditures."
3. Thus, elected officials are permitted and justified to grant influence and access based on independent expenditures made on their behalf by corporations.
4. Because the trade of access and influence for independent expenditures made on behalf of a legislator is an example of the marketplace of ideas in operation, there is no reason for public concern. And there won't be any.
It is clear in the decision that that's the line of reasoning with which the Court intends to test challenges and related cases, and probably to enlarge the scope of Citizens United.
One example: this is what the conservative bloc found as a fact. And remember, fact finding is not the proper province of an appellate court in the first place, but here is what they found regarding elections:
"We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."
They just decreed that. So a company comes in, drops a couple of a million dollars in a smear campaign against an opponent at the bitter end of a race, when it can't be answered, and the next thing you know the person they defended against the opponent is in their pocket.
No appearance of corruption? Well, the Supreme Court has decided it: no appearance of corruption. That is clear to them.
Here is another finding of fact by this bloc of judges:
Senator Whitehouse
part 1
"The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy."
The appearance of influence or access...will not cause the electorate to lose faith in our democracy.
They made that up out of whole cloth. There are hundreds of thousands of pages of findings to the contrary in the Record of previous Supreme Court decisions they overruled. But, no, they made these unsupported findings.
It is novel, it is naive, and it contrasts with the actual findings of this Senate 100 years ago, which said the following:
"The evils of the use of [corporate] money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure. It is in the interest of good government and calculated to promote purity in the selection of public officials."
The evils of the use of corporate money in connection with political elections was so generally recognized 100 years ago that the Senate committee working on that legislation deemed it unnecessary to make any argument in favor of the measure -- it was too obvious. Yet now this appellate tribunal has made fact findings that that is all wrong.
Senator Sheldon Whitehouse
http://whitehouse.senate.gov/newsroom/press/release/?id=97D6A9DF-48CB-48AB-82D5-E5FF363CDC29
For example, what's to keep a GOP Congress from banning any corporation, including the DNC, from criticizing the President?
No thanks. I'd rather take my chances with freedom of speech.
Associations of natural persons in the form of corporations are readily distinguishable from commercial corporations. The right of such associations to facilitate the speech their members prefer need not be an issue. Association-type corporations are not the source of the problem.
Commercial corporations are the problem, and they need to be confined strictly to commerce. No electioneering, no lobbying, no PACs. No criticizing the President. Just routine commercial speech under reasonable restrictions.
The people who run and work for commercial corporations enjoy the same speech rights as anyone, and can use those to speak on the corporations' behalf.
Can AT&T donate $100,000 to the Red Cross? Can they donate to the American Cancer Society, who want to increase Congressional funding for medical research? Can they donate to Amnesty International, who oppose the death penalty? Can they donate to the DNC?
All four of those are noncommercial, non-profit organizations with varying degrees of political involvement. Do you think the government should step in to decide which of those are worthy of AT&T's support? Do you think AT&T should not support any non-profit organization at all? Bear in mind that in 2008 they donated over $150 million to various groups.
Greenwald says, “It applies not to 'persons'; it 'simply bans Congress from making any laws abridging freedom of speech.'"
Where does the 9th Amendment fit into this? It states, "the enumeration...of certain rights, shall not be construed to deny or disparage others retained by the PEOPLE” (emphasis added :)
The right to free speech of many of the people IS disparaged when entities are able to drown out their speech.
The Preamble to the Constitution explains the reason for its enactment & says nothing of entities: “We the People of the United States...do ordain and establish this Constitution...for the general welfare...” (Same with the Declaration that proceeded it)
Greenwald seems to confuse the act of attempting to ensure (via publicly funded elections, statute or other means) vigorous, open debate and equal opportunity for speech, with abridging the speech of one class.
When a law creates conditions in which the speech of a few (with respect to key policies that will affect all) has a disproportionate influence & can drown out the diverse views of the many, the government is essentially restricting the speech of many citizens & limiting debate.
Allowing the few to stifle the speech of the many seems the most obvious violation of the 1st Amendment.
The 1st Amendment does mention people, but never entities.
Or are we allowed to own persons? anybody? anybody? Beuller?