Wednesday, October 13, 2010

Citizens United: Another Angle

Since it fostered so much debate yesterday, I thought it would be worth while to post a link to this piece in Democracy in America. Matt Steinglass raises the question of the appropriateness of foreign money being spent to influence U.S. elections. He lays out rather logically how the Citizens United decision makes it legal (and largely untraceable) for foreign governments to spend large sums of money to influence American elections. He notes:

Surely, the Supreme Court would hold it unconstitutional for Congress to pass a law prohibiting foreign citizens from getting up on a soapbox in Central Park and stating that they prefer one candidate or another in an American election. On what basis, then, can Congress bar foreign corporations from buying unlimited campaign advertisements advocating their preferred candidates in American elections? Ah, one might object, but buying campaign advertising is not the same as engaging in speech. And corporations are not the same as individuals. These are precisely the two principles that Messrs Kennedy, Roberts, Scalia, Alito, and Thomas rejected in Citizens United.

For me this brings back two things I thought were obvious until the Citizens United decision. 1) Buying advertising is not identical to practicing free speech and 2) Corporations (and unions) are not individuals. Of course, as Ben pointed out yesterday, the real kicker of the Citizens United decision was the removal of reporting requirements. We are now left with less data about the additional money being spent and where that money is coming from.

I wonder how the most vociferous defenders of the decision would feel if Saudi royals influenced city council elections in Dearborn, Michigan in the hopes of founding a Wahabi grade school? My gut says they would be non-plussed at the notion.

8 comments:

Colin said...

Steinglass might have a point -- we should consider allowing both foreign persons and corporations to engage in political advertising in the US (I am not sure I am 100% willing to endorse that at this point but am inclined to support it, although I could probably be talked out of it).

From a very practical perspective I am not even sure how this can be stopped. I think the day is not far off when the TV and internet will completely meld. People will watch programming and content from all over the world, and what on earth can the FCC then do to stop foreigners from engaging in political advertising? If, say, a large number of Americans read The Guardian online or watch Sky programming, what will stop these content providers from presenting political advertising aimed at Americans that is paid for by foreigners?

To some extent this is already taking place. Let us recall in 2004 when The Guardian -- which is also a corporation -- sponsored a letter-writing campaign for Brits to write letters to Americans in Ohio urging them to vote for John Kerry? Or during the last election when lax controls on the part of the Obama campaign enabled both foreigners to contribute and Americans to exceed hard money limits.

I think this is a debate that is increasingly academic.

I will also point out once again that the only real way to get money out of politics is to reduce the government's scope of power. To expect people not to do their damndest to influence an increasingly powerful government is like expecting the inhabitants of Middle Earth to take a blase approach towards ownership of the ring of power.

Jason said...

Seems to me an alternative way to get money out of politics is to limit the amount of money that can be spent in politics.

Colin said...

Except, of course, that despite efforts at limiting money in politics which date from at least the post-Watergate era (and arguably back to passage of the Tillman Act back in 1907 -- Sen. Tillman of course being motivated by a desire to muzzle Northern corporations that might be opposed to segregation) the amount of money spend on politics has proceeded ever upwards.

That's not to say it couldn't be done, but I don't see how it could take place in a manner that doesn't utterly trample the constitution and limit free speech.

Jason said...

Either we disagree on something or you're ignoring part of Steinglass's piece, whereby buying advertising perhaps shouldn't be so easily equated to free speech. Indeed when one buys advertising, in a literal sense, it is no longer "free" speech.

Also, in your comments you have failed to address whether a corporation (or union) can and should be considered on equal footing as an individual when it comes to matters of free speech. The constitution enshrined fundamental rights for the individuals, not corporations. The conflation of the speaker (and inherent rights bestowed upon said speaker) was, as I've mentioned, a very disturbing part of the Citizens United decision.

Colin said...

Either we disagree on something or you're ignoring part of Steinglass's piece, whereby buying advertising perhaps shouldn't be so easily equated to free speech.

But I think it should. If you deny me a medium of speech then my free speech is being infringed upon.

Also, in your comments you have failed to address whether a corporation (or union) can and should be considered on equal footing as an individual when it comes to matters of free speech.

I believe that in the Citizens United case the Supreme Court ruled -- correctly in my opinion -- that a corporation (or union) is ultimately an association of individuals. So it makes little sense to think that the right to free speech somehow disappears when individuals band together with others and express an opinion.

Ben said...

No. That's not what was at issue in the case.

Colin said...

I didn't say (or at least mean to imply) that was what was at issue, but rather that the logic of corporations being an association of individuals was employed.

As Justice Kennedy wrote in the majority opinion:

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.

Ben said...

Yes. This addresses antidistortion (drowning out or dilution) as a governmental interest not the First Amendment rights of associations. That's rather well settled.