Citizens United redux?

| February 18, 2012 | 33 Replies

Josh Silver of United Republic reports:

On Friday night, the U.S. Supreme Court blocked the Montana Supreme Court’s December, 2011 decision upholding the state’s century-old ban on corporate political spending. The implications of this are huge, as it paves the way for a potential re-opening of the disastrous Citizens United decision that has spawned billionaire-sponsored super PACs. And if that happens, Chief Justice John Roberts better buckle up for a grassroots mobilization unlike any the court has seen in years.

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Category: Corporatocracy, Law

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (33)

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  1. Adam Herman says:

    A grassroots mobilization won’t do any good. And besides, the issue is no longer just about corporations, it’s about individuals’ right to independently spend as well. That strengthens the Citizens United majority’s hand, because it muddles the message of the anti-Citizens United side, who were focused like a laser beam on corporate spending up until recently.

    Plus, like Citizens United, the plaintiffs are sympathetic. It’s not some megacorporation. Montana seeks the right to enforce the law arbitrarily, but these smaller companies aren’t having it. ANd that’s really what is influencing Justice Kennedy. Governments are trying to claim a right to enforce speech limitations on disfavored speakers while preserving them for favored speakers. Montana says that of course it would be okay for Champion Painting to speak out on elections, so why all the fuss?

  2. Adam Herman says:

    You can do public funding, nothing wrong with it, but you can’t stop independent spending without an amendment. Although this case could end up narrowing the scope of Citizens United. Kennedy is eminently persuadable and on Scotusblog they were discussing how Ginsburg and Breyer are advising Montana that their current arguments are not sufficient. They need to come up with something better if they are going to win this case, and it is winnable given Montana’s history. But Kennedy needs to hear that the standard is reasonable and not arbitrary. Which is going to be a tall order, but doable.

    • Erich Vieth says:

      I’m all for passing a new Constitutional Amendment to blow away Citizen’s United, to strangle off campaign spending by rich individuals and corporations, to even the playing field financially among the candidates, to make campaigns totally about ideas and not money, to shut down the attack ads and instead encourage real discussion, and to ultimately make this much more a government by the People.

  3. Adam Herman says:

    Yeah, but how do you do it? Plenty of really smart people want to overturn Citizens United, but they’ve found writing an amendment to be very difficult. I really can’t think of a way to do it except to basically give the government powers to shut down whatever election spending they see fit and trust that they won’t abuse it.

    Another approach would just be to give the government unlimited power to regulate commercials since the main issue reformers have right now is with TV ads. Although I don’t really think that will satisfy anyone, because once they see how little the TV ads really mattered they’ll start targeting the internet.

    • Erich Vieth says:

      United Republic is working hard to get the ball rolling. They are seeking local government resolutions like this, from coast to coast:

      RESOLVED, the People of [City], [State], stand with United Republic and communities across America
      in protecting our republic from the corrupting effects of well-financed interests, by establishing that:

      1. Campaign financing and spending should be structured to prevent undue influence by any person or entity over politicians and policymaking;
      2. Corporations should not enjoy the Constitutional rights of human beings.

      BE IT FURTHER RESOLVED, that the People of [City], [State], hereby instruct our state and federal representatives to end the auction of American democracy by enacting resolutions, legislation and constitutional amendments to advance these principles.

      http://s3.amazonaws.com/media.unitedrepublic.org/campaigns/act-across-america/AAA-Guide.pdf

  4. Niklaus Pfirsig says:

    A large part of the problem is that our legislative process has not kept pace with technological advances, and the current laws do not address the abuses made possible by modern technology.

    First, we need to implement a transaction tax on financial and commodities transactions. This is not primarily for revenue, but to act as an incentive for traders to slow the markets and stabilize stock and commodity values. The next step would be to extend preferential corporate responsibility to the people in the nations they operate in, and make the principle corporate officers directly responsible for for their misdeeds. As a CEO of a major car maker said years ago, “every business, no matter how large, has a right to fail.”

    Instate corporate citizen laws. Any corporation that contributes to any US campaign, directly or through PAC, SuperPACs or any front group must have its corporate headquarters in the US. Any US corporation that moves its headquarters outside the US for any reason will lose its citizenship rights for a minimum or 25 years.

    Make any corporate officer of a US headquartered corporation who supports the interests of foreign entities, including corporations, should be found guilty of treason and treated accordingly.

    That’s just for starters.

  5. Adam Herman says:

    Trust me. No one can write an amendment solving this problem without entrusting the government with powers that go far beyond what is intended by the drafters of the amendment. It will be very easy to shut down dissent entirely if the government chooses to do so.

    • Erich Vieth says:

      Adam: What is the choice? If we do nothing, we are trusting financially powerful people and corporations to run the country for the rest of us. Would you rather do nothing?
      Two more questions for you.

      1) Do you see a problem with the way elections are run?
      2) If you see a problem, are you willing to do anything about it?

  6. Adam Herman says:

    I have no problem with independent advocacy. I agree with the courts that there is no quid pro quo as long as there is no illegal coordination with the candidates. I see no difference between Michael Moore and Miramax spending $6 million to influence an election and David Koch doing so. There are many mediums used to influence elections, from books, to the internet, to movies, to documentaries. It’s a wide open marketplace and I think it’s healthy. The politicians and the media have a different view because they want to monopolize that marketplace. So they convince the public that this is corrupt.

    That’s not to say elections are perfect. I support disclosure laws, I support public funding of campaigns, and I think you can deal with Super PACs by forcing the main contributors to stand by the message the same way candidates have to. Make David Koch’s voice appear, “I’m David Koch and I approved this message.”

    The alternative, a constitutional amendment, risks our 1st amendment freedoms. Especially since now we’re talking about limiting individual advocacy. You seem to be saying that we can speak out on politics all we want, just so long as we don’t reach too many people with our message. Only the media and politicians may do that. It takes money to spread a message, even if you are a journalist or a politician, and creating a privileged class that may address the nation on politics while no one not of that class may is a problem.

  7. Niklaus Pfirsig says:

    Where would we be without the naysayers?

    Adam said “Trust me”

    Hermanos of the Borg ( Resistance is futile, You will be assimilated exploited and enslaved. Trust me.”

    A functional economy is founded on mutual trust. confidence games are built on unilateral trust. Our current political and economic systems are more of the latter than of the former, but ultimately we must place our trust in the equal application of the law.

    I have heard many of the elected conservatives state publicly that we are not a democracy, that we are a constitutional republic.

    Let’s define a few things.

    A republic is government by written laws, as opposed to government by decree or fiat. China is a republic, the former Soviet Union was a republic. Before our intervention Afghanistan was a republic, Egypt’s dictatorship was a republic, Iran and Pakistan are republics as is Israel, and as are Syria, Somalia, South Africa, Libya and others.

    Clearly Liberty is not guaranteed by simple being a republic.

    Liberty is not guaranteed through constitution republics as many dictators have ruled constitutional republics. A constitutional republic A constitution is simply the rules setting limits on the laws of the republic. Of note is that Israel has no official constitution, even though several attempts to create one, none have been ratified,

    What differentiates our constitutional republic from many others is that we are a representative democratic constitutional republic. We are a nation of laws that are limited within the boundaries set forth in a constitution where the laws are enacted by representatives of the people of the republic.

    The problem with the Citizens United judgement is that it ascribed full legal rights to a fictitious entity. It is the equivalent of permitting Mickey Mouse to run for the Presidency.

  8. Adam Herman says:

    Actually, all it does is reaffirm that Congress may not censor speech, regardless of the source. The 1st amendment never says anything about people. It simply takes away all power from the Congress to censor speech, prevent assembly, impose religious values on us, etc.

    And as we’ve established, it’s not as if the reformers think anyone has rights here. Apparently political speech is a very limited right available only to the media and the political class. That’s far worse than a right that is available only to the rich. There are a lot more rich people and rich organizations that take small dollars(like the ACLU, Sierra Club, unions) then there are journalists and politicians.

    • Erich Vieth says:

      Adam: It is my opinion that when considering who to elect for federal office, the federal government ought to strive to keep an even playing field, to make sure that the ideas presented by anyone have a fair chance of being considered, not being drowned out by any rich person or entity, and that they are able to migrate “organically” or naturally among the voters. No candidate should be privileged to use a megaphone unless they all have one. I realize that the devil is in the details with regard to implementing such a system. I am also firmly convinced that the present situation is a joke. It does not comport with any reasonable person’s conception of a democratic election.

  9. Adam Herman says:

    Nevertheless, there is no means by which the federal government can create a level playing field, nor is that their design. The media and the political class have a vested interest here, although I think their view that independent advocacy is bad is heartfelt. They actually believe that only they should be able to define what the national agenda is. However, us lowlier citizens who are not journalists or politicians do not have to accept their view of the way the world should work. We can make a difference, and we do. Labor spends big money, the ACLU spends big money, Moveon spends big money, the NRA spends big money. And all four of those groups get their money from the masses, not rich benefactors. I\’d count the AARP as well, even though they are more a business these days than a mere advocacy group. They stil represent and are supported by millions of elderly and their voice carries great weight.

    I prefer the uncertainties of a free market of sorts for political speech than the old model we had in the \”golden age\” when the citizenry knew it\’s place and just followed Walter Cronkite\’s advice on what to believe about the world. And rich people enjoyed even more influence back then, just being able to cut giant checks to politicians. The fact that today they have to persuade the public directly is a feature of campaign finance reform, not a bug. But if you believe it to be a bug, we should just get rid of the soft money ban.

    • Erich Vieth says:

      Adam: The federal government could provide forums where many candidates from many parties could present their views. How about day long forums where the candidates each have the opportunity to speak? How about mandating that radio and TV provide substantial free airtime (on the airwaves, which are OWNED by the People of the U.S.)? I want many different candidates to have the opportunity to air their views. As it is now, a handful of media-owning corporations decide who the “serious” candidates are by covering them and ignoring the others. You get to vote for one of THEIR candidates on election day.

  10. Adam Herman says:

    That’s good, but why only the candidates? And should speech that reaches the masses only be available through either the government or the media?

    There’s a lot of shady stuff going on with these Super PACs, but this just sounds like we’re walking into a trap. Only once in our history have we passed a constitutional amendment granting the government power to outlaw something. I’m not sure throwing people in jail or censoring their speech for the “crime” of effectively speaking out on the issues or candidates of the day is a good solution. And I recall many counselling that we shouldn’t get rid of earmarks because Congress’ spending power was too important, despite the corruption involved in earmarking. If we’re willing to tolerate some corruption to protect a Congressional prerogative, how much more should we tolerate to protect the 1st amendment?

  11. Niklaus Pfirsig says:

    …no one is really poor. At least no one WORTH mention…

    Adam, what makes you imagine we have a free market?

    The accessibility of information to human beings is a limited resource. I am unaware of a name for the concept, but one’s ability to take in, to consume information and to understand it maxes out a a point. For want of a better term, I’ll call this “The Signal”.
    There are 24 hours in a day, 168 hours in a week, 8766 hours in a solar year, and and we need to spend about a third of that time sleeping, about a third on various tasks requiring some mental focus. That leaves an average 3000 hours per year that our attention is freely available. This is the time when THE Signal can reach out to us.
    But the Signal carries with it much Noise. Noise is the useless, the trivial, the mind numbing thought suppressing garbage that interferes, that desensitizes us to the realization of our power.

    One way to counter the Noise is to shout. The loudest voice can be heard above the Noise

    [ more after this important message !!! ]

    Howdy Friendly Corporations!

    Are y’all dammed good -n- tarred of not be-un able to git yer signal out when yont too?

    Well the gud folks down and CitiFoxSoft Technologies have sumthin fer you! The brand new 600 Ziggawatt clear channel CB radio. Be the first person in yore nayberhood to be herd A thousand mile away, on every TV, ceilin fan, toaster and even on Jim Bob Jr’s gold fillins.
    All for a few million bucks. And you can charge it on yore TARP card. Iffin yore a military contractor, yew kin expense it out sos the gubmint pays it up.

    Jus tell ‘em Ricky Lee sent ya!

    [end of commercial break]
    but there is another way to get the signal out. Instead of shouting over the objections of the people, you can t_._ __ #__# $$$$$ ATTENTION EVERY ONE…. ALL COMMUNICATIONS ARE NOW THE EXCLUSIVE INTELLECTUAL PROPERTY WAYNE FIZZBINDER AND CITIFOXSOFT. ALL UNAUTHORIZED COMMUNICATIONS WILL BE PUNISHED BY LIFE IMPRISONMENT IN A PENALCORP FACILITY. THIS LEGISLATION WAS BOUGHT BY THE SUPERPAC FOR CORPORATE FREE SPEECH. THE PRIVILEGE OF FREE SPEECH NOW BELONGS TO US.

  12. Adam Herman says:

    It’s a free market in that anyone with the means can get their message out, and even people of no means have a chance to have an effect, either through blogs or youtube videos going viral.

    Also, the little guys’ voice can be heard through collective efforts. Unions are going to spend $400 million in 2012. That’s not chump change.

    • Erich Vieth says:

      Therefore, Adam, if you have lots of money (like a union, a corporation or a rich person) you can get you message out. Or if you are one in a thousand who can make a video that goes viral. Or if you own a TV network. Guess who is being left out of this “free market” solution to what you are proposing? Almost all of us.

      Is that your idea of democracy? Of self-rule?

  13. Adam Herman says:

    Even if that was true, it does not follow that we should reduce the number of people who can reach the masses. To me, there are three possible outcomes:

    1) What we have now, where the rich, or organizations with lots of donors, get their message out.
    2) A regulated system in which only the media and the political class can get their message out.
    3) A system where no one may get their message out.

    #3 seems the most draconian, but it’s actually the most fair according to the logic of reformers. Limit how much money the media can spend on advocacy and define advocacy broadly enough that anything but Facts on File-style straight reporting counts as advocacy and counts towards their contribution limits.

    #1 is at least pro-freedom in that we’re not actively seeking to restrict anyone.

    #2 to me is the worst of all worlds. It says, “David Koch and Michael Moore may not speak out on politics in a way that reaches the masses, but Rachel Maddow and Bill O’Reilly may by virtue of being part of the news media.” It’s completely arbitrary. Be honest now. Is David Koch or Sheldon Adelson more of a threat to our democracy or more influential than Rush Limbaugh? And if not, then how can we limit their right to speak but not Rush’s?

    • Erich Vieth says:

      I disagree that your 3 options are the only options. It might take some thought and some creativity, but election time should not be a time when the people with money and crappy ideas drown out those without money, some of whom have better ideas. Call that my article of “faith,” if you will. Bottom line is that we can certainly do better than we currently are doing at making sure that more people (people with ideas but not money) have a place at the big table. Decisions regarding who to elect are too important for us not to work extremely hard to give the best ideas and people a chance to be heard. We can do this through public forums and public funding akin to the clean money bills that have been used in several states. In short, I hold that the national conversation that SHOULD occur vigorously prior election is a public good, and I’m not going to assume that people with substantial private means speak for most of us. In fact, that is the situation we currently have–primarily a relatively small number of people of means speaking for all of us–and that is why the country is so highly dysfunctional economically and socially.

  14. Niklaus Pfirsig says:

    I think I see Adam’s POV now.

    A free market is a venue where the buyers and sellers have have equal access to exchange goods and services. We do not have a free market. In fact, free markets don’t exist. What we actually have is a middleman controlled market with limited competition.

    In our economic system, most prices are set by the middleman, and are not negotiable by the buyer. In a free market, the price may be negotiated between the seller and buyer. buyers may be consumers or middlemen, and sellers may be producers or middlemen. Middlemen are, effectively buyers and sellers.

    Free market fundamentalism (FMF) errs in the idea that market control by the government is inherently evil, and that market control by the middlemen or suppliers is beneficial to all. In fact, without government regulation, there is no free market.

    But that’s is beside the point.

    Rights are not commodities that can be traded in a market. Clearly Adam thinks otherwise, as he ascribes to the ideology that the right to free speech can be purchased by the highest bidder.

    Pogue Mahoney, Adam. Pogue Mahoney!!

  15. Adam Herman says:

    I’m no free market fundamentalist, but I do believe that regulations should have a purpose and succeed at that purpose. It must also not violate the Bill of Rights. There are only two ways to enforce a ban on independent advocacy: censor the ads, or let the ads run and punish the person who ran it. The only way this doesn’t sound like something sinister is if you twist yourself in knots trying to explain how either the speakers aren’t people or that somehow their speech isn’t protected. Or that the exercise of their speech is somehow dangerous to our freedoms.

    To really know where I’m coming from, since this blog seems to be a fan of Glenn Greenwald, just read up on his views of the Citizens United case on his blog. While acknowledging the influence of big money on campaigns, he is a defender of the 1st amendment first and foremost and I think he’s absolutely right. And he expresses himself better than I do.

    As to my 3 options, I fail to see alternatives. Do you not clearly object to independent advocacy by wealthy individuals and corporations? Aside from the media and politicians, who may acceptably spend lots of money to advocate for or against candidates or policies? And if you acknowledge the absolute right of the media to be free of regulation, what is to stop any rich person sufficiently interested in politics to just do what Rupert Murdoch did and build a media empire? Why is Murdoch, or Roger Ailes, given complete free rein to influence politics, yet Sheldeon Adelson is a problem? I don’t think special rights come with ownership of a media empire. It raises the exact same issues you bring up in regards to political ads. Only even fewer people can own media empires.

  16. Adam Herman says:

    Here’s the link to Greenwald’s classic post on Citizens United if anyone’s interested. He doesn’t make any arguments different from mine, but he does make them better:

    http://www.salon.com/2010/01/22/citizens_united/

  17. “A free market is a venue where the buyers and sellers have equal access to exchange goods and services.”

    Equal access must include access to information. This is the too often missing part that goobermint pretends to regulate on behalf of all parties.

  18. Niklaus Pfirsig says:

    What you are missing Adam is that a dominant participant in a market assumes the role of the de facto governing body. Which brings us back to a basic reality.

    Bandwidth, in the both the technological sense and in the informational sense (the latter includes attention span) are limited. Free exchange of ideas has proven important in industrialized societies, and as such, information bandwidth must be managed within the public domain in the best interests of the common good.

    Permitting corporations, which seek to own everything, full control of the media is to promote the exploitation and destruction of free speech.

    Why? because they are opposed to the <a href="http://en.wikipedia.org/wiki/Equal-time_rule&quot; equal time rule and the fairness doctrine. Citizens United is a prime example. It is a production company specifically set up to promote right wing politics in a way that exploits loopholes in the equal time rule. By claiming their propaganda films are documentaries, and through laundering the funding for the production of those files to hide the political backers, they can run political ads disguised as movie trailers, that would otherwise violate campaign law.

    Freedom of speech should imply quality of speech, but in the brave new world, it is painfully obvious that some speech in much more equal that other.

  19. Adam Herman says:

    You are confusing speech that is unequal because of natural constraints, and speech which is unequal because of artificial restraints imposed by the government. In neither case has “the little guy” ever been able to reach the masses. All that the government has ever accomplished is to make it so that fewer rich people get to speak. Is a situation where any millionaire or organization with funds can get their message out bad, whereas a system where only the President and Walter Cronkite could do so good? Were we better off when the national agenda was set by so few that you could count them on your fingers?

  20. Adam Herman says:

    But this is all beating around the side issues anyway. The crux of the issue is this: should Citizens United have been barred from releasing their documentary? And since this is about a Montana law, should Champion Painting be barred from advocating the election or defeat of a candidate for office?

    What this comes down to is the criminalization of speech. There’s just no way around that. Opponents of the decision can say, “It’s not about free speech” all they want, but it doesn’t change the fact that in order to enforce bans on independent expenditures, you actually have to censor or punish political statements.

    I can think of no cause that justifies that. Especially since opponents of Citizens United can’t even write an amendment because they don’t actually have any firm principle in mind. If they believed that corporations don’t have 1st amendment rights, it would be the height of simplicity to write an amendment saying so.

  21. Niklaus Pfirsig says:

    The issue was not about the release of the film. The issue was about the timing of the release of the film, which directly violated the McCain Feingold election reforms of 2002.

  22. Adam Herman says:

    That was Justice Stevens’ argument, that the regulations were a proper restriction on “time, place and manner”. Kennedy rejected that view because the government claimed the power to censor any electioneering communication during the 60 day period. Books, pamphlets, and blogs. And of course documentaries.

    There’s also the issue of arbitrariness that I keep bringing up. What is the difference between Hillary: the Movie and Fahrenheit 9/11? I can see none. Yet Fahrenheit 9/11 encountered no issues with its advertising or release, while Hillary the Movie got blocked from airing.
    Citizens United made Hillary the Movie specifically because Miramax Films had been allowed to distribute Fahrenheit 9/11 freely. The FEC made its decision based on the content of Hillary the Movie. And you know how sympathetic the court is to content-based speech restrictions.

  23. Niklaus Pfirsig says:

    Adam Herman wrote: What is the difference between Hillary: the Movie and Fahrenheit 9/11? I can see none.

    Then you saw either one or neither. Fahrenheit 9/11 questioned the role of corporate media in promoting the 2003 invasion of Iraq and subsequent occupation. It also explored the hypocrisy on both sides of the aisle how voted for the invasion, along with the inconsistencies in the intel used as the base premise for the invasion.

    Fahrenheit 9/11 was released to theaters shortly after the last 2004 primary.

    Hillary the movie featured the opinions of a large group of mostly ultra right wing people, including politicians, pundits, right wing policy institute heads, representatives of military contractors and a few right leaning citizens.

    Hillary the movie was released on Direct TV as a pay per view event, on the eve of a January Democratic primary in 2008.

    There was a big difference between the two films.

  24. Adam Herman says:

    Sure, about as different as Star Wars and Star Trek. It’s all in the eye of the beholder. Michael Moore said when his movie was released that he wanted it to help defeat GWB. There is no question that it was a $6 million political contribution to John Kerry’s campaign by the logic of campaign finance reformers.

  25. Adam Herman says:

    And unlike Hillary the Movie, which was only financed by corporate money in part, Fahrenheit 9/11 was 100% financed by a single corporation, Miramax Films.

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