Laws Should Address Problems & the Supreme's Shangri-La

The Bloomberg editorial board takes the Supreme Court to the woodshed over over the spurious Montana campaign law decision from earlier this week. And I couldn't agree more.  It's not secret I'm no fan of the Citizens United decision for a few reasons.  First, equating money with speech is ludicrous because one is inherently apportioned equitably across the populace, money is not.  Second, because more money in politics is almost certainly a recipe for corruption.  I mean, we didn't seen a subversive MP3 in Rep. William Jefferson's freezer or a library of banned literature in Ted Stevens' renovated home.

More to the point in the Montana case, the state has experienced that too much money leads to corruption:

Montana begged to differ. Based on its history, which included the wholesale purchase of the state’s Legislature and political class by mine owners more than a century ago, Montana restricted corporate spending in elections. It did so not because the state abhors free speech, but because it required a bulwark against corporate corruption that had subverted the state’s laws and threatened the well-being of its citizens.

But the Supreme Court didn't much care for this rationale. Money equaled speech after Citizens United, but as the Bloomberg editorial continues:

In Citizens United, the majority... compounded this error by patting itself on the back for at last bringing clarity and coherence to the nation’s muddled campaign finance regime. “A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today,” Justice Kennedy crowed. This is a pitiful statement. No such system existed when Kennedy wrote it. And the prospect of ensuring effective disclosure has only grown more dubious since... Republican leaders - - including House Speaker John Boehner and Senate Minority Leader Mitch McConnell, both of whom vowed support for campaign finance disclosure in recent years -- are blocking it. Thus Kennedy has not only been wrong about disclosure in the past and present, he may continue to be so well into the future.Such errors are not incidental to Citizens United. They are central to it. If political money corrupts, then there are countervailing interests to weigh against the potent claims of free speech. If powerful interests -- including foreign interests -- are free not only to influence elections, but also to do so secretly, then the Shangri-La of free speech conjured by Citizens United, in which the myriad sources of finance are fully disclosed, exists purely in the imaginations of five men in black robes.

Quite right.  Of course there are those that will argue that the legislation passed by Montana was in response to an event over a century ago and that we can't legislate against a problem that doesn't exist anymore, especially if it violates what some consider "free speech." 

Though many of those same folks, who support the Citizens United decision and the free speech they feel it defends aren't up in arms about legislation that would restrict a citizen's ability to vote to solve a voter fraud problem that doesn't exist.

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. 

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.