What's Wrong With CU?

Citizens United is the new Lochner, a somewhat misused symbol for the times.  A discussion raised an important point (Monica Youn) that I have made myself -- people might not be focusing on the right thing, even if they are on the whole correct (shades of Lochner, sorry David Bernstein*)  to be wary about the whole thing.  Ms Youn opposes the cocksure nature of the opinion ("remiss in performing its duties" if they didn't take the case then and there etc.), particularly on this:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

That is the money, if I may, quote.  Not only, as noted shortly above that legal conclusion (that pitcher didn't have a perfect game ... it sure looks like he got that 27th out, but the umpire didn't call it, so he officially does not), the "anticorruption interest is not sufficient to displace the speech here in question."  This would be strongly opposed by many, not limited to the majorities in state (the opinion notes twenty-six restricts the expenditures addressed here, using the figure to show the "limited" concern in place) and federal legislatures passing laws with this in mind.  This is so even if -- like many things -- you can't "prove" it in a court of law or such.  But, to not even be there at all?  Really now.

I continuously note, and Ms Youn calls out to Congress et. al. to do what they still can, that the opinion leaves open regulation.  But, as she notes, if it doesn't "give rise to corruption," what is the explanation for banning non-citizens to contribute here, particularly for certain subjects like US-Cuban policy in the upcoming Florida primary?  What is the point of disclosure law anyway if there is no real concern for corruption or its appearance?  It contributes information, sure, but why? It is a "less restrictive alternative," but it is a burden and to some degree limits associational privacy (see Thomas' partial dissent).

Scalia is more blunt and sees it as a necessary evil, just as speech hurts people's feelings and promotes nefarious ideas that has real harm:

It cannot be denied, however, that corporate (like noncorporate) allies will have greater access to the officeholder, and that he will tend to favor the same causes as those who support him (which is usually why they supported him). That is the nature of politics—if not indeed human nature

If this be "corruption," it simply is not the sort that the First Amendment allows to be barred by this method.  By his lights.  We hear of the power of the well off individuals controlling elections, but there is nothing novel about this. Chris Hayes this morning as much as another contributor on the panel I linked to above cited the billionaire (not a corporation) who is a if not the primary reason Newt Gingrich still has funds, but did rich individuals not do the same in the past, if in some different fashion? And, are we actually upset about it here?  People on my side LOVE the fact he is out there railing against Romney, providing an entertaining as well as educational means to challenge the presumptive nominee who otherwise would have much weaker opposition.  We rather a different conduit, but any port in the storm, if the real alternative in nothing much. 

Still, regulation in this area is valid and corruption and the appearance of corruption is a major reason why.  This cannot override First Amendment protections and even the dissent knows as much, supporting limited means, means that do not simply give no protections to "corporations."  The path to the right destination, however, is not to be taken under misguided assumptions on either side.  The majority is correct to respect First Amendment values, even when corporate spending is at stake, but getting there the wrong way still has problems. 

Life is complicated. 

---

* In a new book, promoted at the blog he contributes to -- Volokh Conspiracy (fix the comment issue, please!) -- is promoted by him at times as a means to address stereotypes concerning Lochner v. NY, not some sort of substantive defense of its result.  That is, he puts himself out there as some sort of agnostic on the opinion while just concerned with opposing the stereotype of its opponents then and now. 

This isn't credible given his overall approach, down to the very title of the book: Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.  Fact is, he is a libertarian and shares the overall sentiments of the opinion, though its authors did a lot less at the time for non-economic rights than he would.

The fact the criticism is off doesn't mean it is totally wrong and we should not miss the forest for the trees though if you miss a tree, it can be a problem.  Just ask those who drive into one.  The result is not pretty.