Happy Anniversary! (Citizens United Edition)

As police were taking that person out of the chamber after wrestling the demonstrator to the ground, another protester started shouting "one person one vote" amid the clamor of chairs being knocked over. Another demonstrator began shouting about "the 99 percent," a reference to the majority of Americans as opposed to the richest 1 percent of the population.

There was a protest during the opinion announcements at the Supreme Court, it being the fifth anniversary of the Citizens United ruling (tomorrow is the 42rd anniversary of Roe v. Wade, but there is no open court scheduled).  I'm glad they said more than "money isn't speech," since I find that lame -- it's obviously not speech, but like a range of rights, money is needed for free speech. The problem is the appropriate regulation.  

As I argued in a recent review of Zephyr Teachout’s Corruption in America, the problem with Citizens United was not that it recognized that corporations have speech rights, or that restrictions on money spent for political campaigns should be viewed skeptically as regulations of speech, but that the Court rejected any rationale for regulation other than avoiding quid pro quo corruption in the narrowest sense. The reports released last week underscore how much our democracy is paying for the Court’s flawed analysis.

David Cole hits to the core of the problem that can be lost among those who speak of money not being speech or corporations being treated like human persons (which few doubt is appropriate in some cases, such as for advocacy organizations, media institutions or incorporated churches). Corporations also aren't treated "the same" as human people --  corporations, e.g., don't have the same right against incrimination or the breadth of privacy rights generally as human persons.  The problem is how equally and ultimately the concerns here go beyond corporations to regulation of campaign finance generally.  Rhetoric can confuse.

Cole in the article notes that "problems with the Court’s campaign finance jurisprudence predated that decision," but we should not assume that the problems are "due" to that decision or earlier decisions.  They very well are aggravated by them, but the ultimate problem is going to be present either way, and is inherent in the political process.  Such is Prof. Teachout's point and her argument is that campaign finance laws are loyal to original understanding concerns about corruption and the dangers to good republican government. Moving beyond history, her arguments can provide an overall argument in support for regulation here.

[For sake of clarity, I will add a bit more here. The argument is that the corruption issue provides a compelling state interest that authorizes limits on 1A rights, if such "freedoms" are to be understood to cover that sort of thing in the first place (cf. obscenity as arguably not an aspect of free speech).  Likewise, it is not really true that until the amendment was passed, people didn't have a right to free speech.  So, the underlining contours of republican government that the 1A here furthers and helps elucidate the reach of  would require some limits here.  Finally, at the very least bribery laws provide a limit here; Teachout and others argue a broader quid pro quo threat is out there that can be regulated.  So, those like Scalia who admit money can "corrupt" but it is allowable in a range of ways can be answered, using original understanding as a means of support.]

I did then and do now find the specific ruling at least possibly correct. To be clear, do think it probably was needlessly activist (the term is not bad, it's the application that matters), it very well possible to decide the case on narrow grounds.  If you are going to make a significant change in the law here, an in the middle of things re-argument seems to be somewhat bad pool. And, there very well probably are certain things about a "corporation" that can justify special rules.  Still, the concept itself is not to me some sort of talisman to reduce 1A rights generally.  And, don't think the average critic disagrees really -- they are concerned about a narrow number of rich corporations and again usually have bigger game, like money generally.

This goes back to the dangers of deciding this question too broadly. Some don't like the "minimalism" of the Roberts Court and I flagged the usage of a fairly extreme prison rights case to decide religious rights of prisoners. But, free expression and the like repeatedly turn on specific facts and narrow issues.  So, we had a case the other week about regulation of signs. There are a range of possible regulations here, possible even after Citizens United, if there is a will.  Agree with CU critic Rick Hasen as well as to the foolhardy, except to push the middle along, amendment approach. A case involving non-citizen residents that the USSC upheld without comment underlines the possible nuances here.  President Obama flagged "foreign corporations" in that infamous SOTU comment and did so again today. 

And, it continues to be a good idea to talk about corruption and progressive ideas of free speech (e.g., not crowding out voices by wealth) and election reforms (you want your money in politics? at least don't add other sorts of invasive regulations like stupid id laws). There are a range of possible solutions here such as voluntary rules for parties, free air time,  matching funds schemes, limits on foreign money and so forth.  After all, even if at least some of Citizens United is right, it doesn't mean all campaign laws are wrong.  Justice Kagan showed that here, even if you thought as solicitor general she was on the wrong side five years back. Disclosure laws, including as applied to corporations (and their shareholders), is another way to go. And, that is one area that Kennedy et. al. actually supported.

MLK believed that confrontation was essential to force society to face up to its flaws.  Acts of civil disobedience, notable for their lack of nuance they might be, have value.  The issue continues, including yesterday when the Supreme Court heard oral arguments concerning judicial elections.