Bench Memos

Defending Citizens United

Bad arguments have been proliferating in the wake of this week’s Citizens United case, which struck down restrictions on political expenditures by corporations and unions. The opinion leaves in place limits on campaign donations, but frees up corporations and unions to spend as much as they like to disseminate political messages. Here is a rogue’s gallery of the most common arguments I’ve heard against the holding, followed by brief explanations of their profound misguidedness.  

1) This 5–4 decision is a blatant example of judicial activism, and conservatives are hypocritical for supporting it.

Judicial activism occurs when judges abandon constitutional or statutory meaning and impose their policy preferences instead. A decision that faithfully applies the First Amendment is not activism but rather a proper exercise of the judicial responsibility to keep Congress within its constitutional bounds. The government argued in Citizens United that it had the power to outlaw books and movies produced by unions and corporations, both non-profit and for-profit, if they included even a single line addressing an election or a political issue. Such blatant censorship of core political speech falls well within the text and original meaning of the First Amendment, which supported an open marketplace of ideas by declaring in broad terms that “Congress shall make no law . . . abridging the freedom of speech.” Contrast this with the paradigmatic examples of left-wing judicial activism, which have manufactured a host of “fundamental” rights without anything resembling such a clear textual basis.

2) Political expenditures are not “speech” and should not be protected under the First Amendment.

The force of this seductive argument evaporates upon the realization that spending money is an indispensable component of effective political speech, especially when it involves any audience above a trivial size. If the government could ban expenditures related to speech, it could easily circumvent the First Amendment simply by targeting the necessary funding underlying any communication. Imagine the New York Times being prohibited from paying for its writers, production, advertising, and distribution. Wonderful as this might sound in some of its particulars, you can see how the paper’s right to free expression might be crimped. And so it goes for any person or group wishing to disseminate a political message through print or broadcast media, which is why the Court has properly subsumed the right to political expenditures within the right to free speech.

3) The protections of the Free Speech Clause properly apply only to individuals, not corporations.

Justice Scalia dispatched with this argument nicely in his concurring opinion by pointing out that the First Amendment has long been extended beyond isolated individuals to groups and associations whose members gather for a wide variety of purposes ranging from political to commercial. The Democratic party, the Sierra Club, and the New York Times aren’t individuals, but their speech nonetheless falls under the umbrella of First Amendment protection. But the formalistic obsession with whether a corporation should have the legal status of a “person” with a “right” to free speech quite misses the substantive issues at stake, which concern how the principle of free expression should be applied to the political speech of certain types of social groups. In particular, is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues? Which brings us to our next point:

4) A deluge of corporate and union speech will corrupt the democratic process.

The very idea that political speech in an open democracy can be “corrupting” rests on fundamentally illiberal assumptions about individuals’ capacity for reasoned deliberation and self-government. The First Amendment was designed to allow all speakers to put their messages out into the public debate, be they rich or poor, vicious or virtuous. The underlying principle is that over the long run, a society of free individuals is best equipped to evaluate the merits of political arguments for themselves, and that a distrustful government cannot ban speech out of the worry that its citizens will be unduly swayed by it. Rich individuals and talented polemicists have always been permitted to put out quantities and qualities of speech that may exert a disproportionate influence on society, but political opponents and voters have always been trusted to evaluate these speakers’ arguments for themselves, respond with counter-arguments, and ultimately make up their own minds about the truth of any matter of controversy. Especially with the explosion of diverse viewpoints and avenues of expression that have come from the Internet media revolution, it simply defies common sense to think that any corporation or union could ever hope to so overwhelm the political debate as to prevent dissenting voices from being heard and reasonably contemplated by the electorate. Of course, this freewheeling political dialogue may be messy, imperfect, and prone to abuses, but the First Amendment makes it constitutionally preferable to censorship targeted at disfavored groups.

5) This decision will radically increase powerful corporate influence in politics, compared to the status quo.

History and economics together suggest that powerful corporate interests operating under an extensive regulatory state will always find a way exert a strong influence in politics. Up until now, campaign-finance regulations have had two ugly impacts: First, they have imposed huge legal costs on those wishing to participate in the political process, effectively shutting out smaller voices who cannot afford to pay campaign lawyers and risk legal trouble in getting their messages across. Loosening legal restrictions on smaller businesses will now allow them to enter the marketplace of political ideas on a more equal footing with their larger competitors. Second, campaign-expenditure limits have driven corporate money away from public dialogue and into channels that have been more corrosive and less transparent (think lobbyists, lawsuits, and regulatory capture). While these more pernicious forms of corporate influence are not likely to disappear any time soon, they may be mitigated to the extent that corporations can now pursue their policy objectives through a more open, deliberative process.

6) Corporate political expenditures violate shareholders’ rights to withhold funds from messages they disagree with.

Two problems here. First, like members of any free association, shareholders have an absolute and easy-to-exercise right to exit from any corporation — in this instance, by simply selling their shares and relocating their investments. It is true that mutual funds and retirement accounts can complicate things, but shareholders maintain the ultimate legal right of control over their assets, including initial investment decisions. In any event, the level of “message subsidy” involved in most of these cases will be so diffuse as to be negligible, especially when compared to government policies and messages that taxpayers must fund despite strong disagreement. Second, corporations commonly disseminate non-political messages and make corporate decisions, including charitable donations, that might strongly offend shareholders. This is tolerated as part of the trade-off inherent in the structure of corporate governance, wherein shareholders voluntarily surrender control of their companies’ day-to-day operations in exchange for the efficiencies of corporate decision-making.

7) This decision will harm Republicans by rallying public opinion in favor of populist-progressive reform and against the “conservative” Supreme Court majority that decided the case.

While four members of the Citizens United majority might fairly be called conservatives, the actual author of the opinion was Justice Kennedy, who defies easy political categorization. In the past few years, he has been repeatedly toasted in liberal circles for penning such sweeping decisions as Lawrence v. Texas and Kennedy v. Louisiana, declaring a constitutional right to sodomy and forbidding the death penalty for non-homicidal child rape, respectively. At the very least, those opinions give him some credibility as an independent voice. But perhaps more importantly, a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights, and that the government should not attempt to protect its citizens from hearing seductive messages put out by sinister, powerful interests.

Most Popular

White House

The Trivialization of Impeachment

We have a serious governance problem. Our system is based on separation of powers, because liberty depends on preventing any component of the state from accumulating too much authority -- that’s how tyrants are born. For the system to work, the components have to be able to check each other: The federal and ... Read More

‘Texodus’ Bodes Badly for Republicans

‘I am a classically trained engineer," says Representative Will Hurd, a Texas Republican, "and I firmly believe in regression to the mean." Applying a concept from statistics to the randomness of today's politics is problematic. In any case, Hurd, 42, is not waiting for the regression of our politics from the ... Read More

In Defense of Tulsi

Some years ago, a liberal-minded friend of mine complained during lunch that Fox News was “stealing” his elderly parents. “They should be enjoying retirement,” he said, noting that they live in a modest but comfortable style with attentive children and grandchildren to enjoy. “But instead,” he sighed, ... Read More

Not Less Religion, Just Different Religion

The Pew Poll tells us that society is secularizing -- particularly among the young -- and who can deny it? That is one reason that the free expression of religion is under such intense pressure in the West. But it seems to me that we aren't really becoming less religious. Rather, many are merely changing that ... Read More

Feminists Have Turned on Pornography

Since the sexual revolution of the 1960s, the feminist movement has sought to condemn traditional sexual ethics as repressive, misogynistic, and intolerant. As the 2010s come to a close, it might be fair to say that mainstream culture has reached the logical endpoint of this philosophy. Whereas older Americans ... Read More