Citizens United

I’ve gotten a few emails from people asking me about Citizens United v. FEC, and what I think about it.

So, in order:

1.) Corporations were already mostly free to engage in political speech anyway, thanks to Wisconsin v. RTL a few years ago, which said they had the right to engage in “issue” advertising. In other words, a corporation running an ad saying “vote for Senator Floozits” would be prohibited, but running an ad saying “Do you want to lose your job because of spotted owls? Tell Senator Floozits you don’t want to lose your job because of some vote on environmental regulation!” would be more or less kosher. The dividing line here is obviously a very fine one, and for the purposes of influencing an election it’s largely meaningless.

2.) After President Obama gave his State of the Union speech saying that foreign-owned corporations could now influence elections, a bunch of conservative organizations and the New York Times jumped up to play fact-checker, saying that parts of the U.S.C. said that foreign corporations weren’t allowed to buy electoral advertisements. First off, this is only a technicality; a domestically-owned subsidiary of a foreign corporation with a majority of foreign-born board members (or even simply license requirements allowing them to be influenced) can get past that restriction quite easily. But that’s before you get into shell corporations. (After Citizens dropped, I asked a friend of mine who’s big into business law how many ways he could think of to get around the foreign ownership restriction. He thought about it for a minute and then said he could think of six.)

3.) Some people have suggested that this decision is a victory for smaller corporations to enter into political dialogue, or that individual citizens can now form corporations for the purposes of generating political speech. These are both extremely stupid arguments. Smaller corporations by and large can’t afford to influence political dialogue on any meaningful level that wasn’t available to the individuals participating in them already, and individual citizens already had the opportunity to form advocacy groups (and have done so with some impressive successes).

4.) And yes, of course I think it’s a bad decision – mostly because I’m very much in favour of greater restrictions on corporate rights rather than less, because they are imaginary people, and imaginary people do not, as a rule, have moral character which informs their action. People complaining that campaign finance reform failed to stop corporate speech miss the point: ideally elections should be solely publicly funded. You sign up for your campaign, you get X dollars and a paid half-hour of media time somewhere to make your case for electability. Of course this will never happen, but so will lots of other things that are great, like McDonald’s bringing back the Shamrock Shake on a permanent basis. Why doesn’t the Supreme Court make a decision saying McDonald’s has to bring back the Shamrock Shake forever? And also the McRib.

5.) Additional commentary on the decision that I recommend can be found here.

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