No Supreme Court decision in recent years has ignited a firestorm of protest and mayhem like the Citizens United decision, now two years old. The basic finding was that corporations, like people, have certain free speech rights that cannot be curtailed without a “compelling interest”, and none has been described. The current political campaign is being entirely shaped by this decision and everyone, left and right, agrees that it is not for the better. But what can be done about it?
There are serious challenges shaping that could overturn this decision, at least in part. But what’s most astonishing is that the worst offenses are not a direct result of the Supreme Court’s order but how it has been implemented in the chaotic political climate that rules Washington. Blame the courts, yes, but there is much more that can be done to correct the worst of this.
The decision itself overturned the ban on corporate “indirect” speech in political campaigns. The reasoning was carefully explained by Justice Kennedy in the majority opinion:
Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. … Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. … On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.
That sounds reasonable enough. It is certainly true that free speech rules everything we do and always finds a way around any laws. It’s also true that the volume of speech depends heavily on the money behind it which can purchase access to media. That’s where this opinion tried to show the way to the system that the Court favored in place of an outright ban:
The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech. … In McConnell , three Justices who would have found §441b to be unconstitutional nonetheless voted to uphold BCRA’s disclosure and disclaimer requirements. … And the Court has upheld registration and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself.
The court did not, as many claim, simply declare that “Corporations are People” and leave it at that. They did state that speech cannot be curtailed, even as a practical matter let alone as a fundamental right, but the people behind all the money can be forced to show themselves. Indeed, most of the money flowing into SuperPACs right now probably comes from people – although without the same disclosure laws that a regular campaign is subject to.
Why did the Federal Elections Commission (FEC) implement this ruling the way they did? Because the FEC is a six person body composed of three Democrats and three Republicans. They never actually agree on anything. When this big change came through, requiring action on the part of the FEC to set up a new regime of regulations allowed by the court the result was the usual gridlock. As Stephen Colbert has shown, there isn’t even a proper form for registering a SuperPAC. Since nothing is prohibited, everything is allowed.
That’s not to say that the very basis of the Citizens United decision isn’t poorly formed in the first place. The Supreme Court of Montana at the end of December ruled that in Montana there is still a ban on corporate speech in elections, declaring the restriction to not be onerous:
The evidence submitted by the State in the District Court similarly demonstrates that corporations, through their political committees organized under Montana law, are and have been a substantial presence and active participants in Montana politics. The many lobbyists and political committees who participate in each session of the Montana Legislature bear witness. Under the undisputed facts here, the political committee is an easily implemented and effective alternative to direct corporate spending for engaging in political speech. This alternative is available to any corporation in Montana.
In short, corporations have their place for speech so there is no outright ban on the “expertise” provided by corporations in the political system we have. Simple and brilliant. Yet Justice James Nelson felt that Montana was compelled in a dissent to follow the US Supreme Court’s decision – but he does not like it one bit:
The notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping.
And so there is a challenge to the US Supreme Court waiting that is well reasoned and formulated. But we do not have to wait for the decision in Citizens United to be overturned to do something about the worst excesses of SuperPACs. We only have to wait for political gridlock to develop a good framework for implementing the decision so that …
Oh, nevermind. The only people who actually make decisions in Washington are the courts, and they were doing their best to guide and shape, not forcefully rule from the bench. That’s not to say that they didn’t make a terrible mistake two years ago when they ruled that corporations have rights, like people. But the big mistake was figuring that the political system had any chance of sorting it out.