Thursday, May 31, 2012

George Will’s Retelling of Citizens United

It takes a special level of arrogance—a George Will level of arrogance—to describe the Citizens United decision as “unremarkable.” One might argue that the scope and duration necessary for any controversy to be resolved by the Supreme Court definitionally renders it worthy of remark. Regardless of your preferred outcome in that case, a decision like Citizens United, one in which the Court ordered re-argument on issues not presented in the original brief, one in which the Court overturned a federal law and overruled its own caselaw, and one that was decided 5-4, is certainly worthy of remark.

Will’s mischaracterization of Citizens United does not yield there. No, Will wrongly frames Citizens United as a case over whether individuals yield their First Amendment rights when they join a corporation or a labor union. While this frame—divorced from reality though it is—allows Will to wrap himself in self-righteousness, it both obscures the reality of the decision and ignores the fact that at will employees may indeed forfeit their First Amendment rights when employed.

In fact, the Citizens United decision had little to do with individuals. Instead, the Court determined that the government “may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” In arriving at this conclusion, the Court took a number of interesting turns, including its determination that the only present danger of corruption is that of so-called quid pro quo corruption and that there is no such danger when a corporation (or union) spends vast sums of money to get a candidate elected so long as they do not give the money directly to the candidate. You are correct: that makes no sense.

But these pesky facts do not stop Will from engaging in a polemic defense of a supposed liberal assault on free speech. While Will busily makes himself the defender of “free speech,” “political speech,” and the “First Amendment” (quoted because of the shear repetition with which Will deploys these terms) in the face of some supposed liberal assault on speech, he manages to make a hash of both history and logic.

Will labels an ABA article as false for correctly noting that Citizens United enabled so-called Super PACs (not PACs at all). Indeed, these organizations would not be possible were it not for Citizens United (with a boost from Speech Now). Will then embraces what has apparently become the Right’s favorite logical fallacy to defend Citizens United: because the Republican primary this year was long and occurred after the Citizens United decision, the Citizens United decision must be the cause of the primary’s length (in this, the best of all possible worlds). Moreover, because a long primary requires political speech, there must be more political speech this year than in previous years—and this must be due to Citizens United! Citizens United improved the quality of our democracy, silly Liberals.

The logic here is nonsense, of course. Worse, the premise is false. The Democratic primary in 2008—before the Citizens United decision— lasted several weeks (and, effectively, two months) longer than the Republican primary campaign this year. More than two times the total number of votes cast in the 2012 Republican primary campaign were cast in the 2008 Democratic primary campaign: 35,442,193 to 16,110,412. But you need not rely on 2008 to attack the premise of Will’s argument. The Democratic primary in 2000 lasted only until March 9 but there were more than 13 million ballots cast in that contest. And the Republican contest that year saw more than 19 million ballots cast! I could go on.

Citizens United, whatever Will may say, is a truly remarkable decision. It has also resulted in a tremendous increase in the amount of money spent on elections. Whether it has improved the quality of speech and debate, whether it has increased the number of voices, and whether it has improved our democracy are more difficult questions to answer. Those are questions worthy of debate—real debate, not the specious variety Will is here trafficking in. 

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