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Can someone help me understand the continuing opposition to Citizens United? I didn't pay a lot of attention to Supreme Court news back in 2010, so I wasn't following the details of the controversy. But I remember the kerfluffle around Alito (allegedly) mouthing "not true" when Obama said, during a state of the union speech, that the ruling would "open the floodgates for special interests, including foreign corporations, to spend without limits in our elections." But the Supreme Court's ultimate decision seemed so obviously correct that I'm amazed it was ever disputed at all--and the fact that, years later, some people continue to consider it an egregiously bad opinion is totally baffling to me.
Here's my quick and dirty understanding of the constitutional issue in that case (please correct me if it's wrong): Citizens United was a nonprofit corporation that made a documentary video criticizing Hillary Clinton. They wanted to 1. show the video on cable TV and 2. advertise the video on cable and broadcast TV. The Federal Election Commission wouldn't let them, because federal campaign finance laws prohibited corporations and unions from spending money to advocate for or against a candidate in an election. The Supreme Court ruled in favor of CU, finding that the provisions of the federal statute in question constituted a ban on political speech and were, therefore, unconstitutional.
Isn't this ... obviously right? Like, if "freedom of speech" means anything, it has to mean that advocacy groups can publish a criticism of a politician. The FEC's counterarguments all seem really lame, like saying the First Amendment doesn't apply to corporations because they have too much money (what if they don't? And what about rich individuals--are they unprotected by the 1A too?), or because their views don't necessarily reflect the views of the public at large (since when does that permit restricting someone's speech?), or because some shareholders might not agree with the corporation's position (which is equally true of media corporations; does the 1A not apply to "the press"?). I really struggle to see how anyone could agree that these arguments justify the FEC's position. On the other hand, the idea that Congress can ban political speech--the most important kind, for First Amendment purposes--about a presidential candidate, no less--just because the speaker is a body of multiple people joined together, rather than the same people acting alone--seems both arbitrary and clearly unconstitutional. (Especially in the guise of campaign finance laws, which in my opinion should have some connection to, you know, financing someone's campaign, rather than restricting independent criticism of a politician.)
I like to think that the Obama-esque critique of CU is more sophisticated than just "corporations BAD!" But that seems to be the thrust of both Obama's SOTU soundbite and, from what I've read of it, Justice Stevens' dissent. (Stevens also complains that the Court went beyond the narrow issues raised by the parties, but I guarantee you that's not why people are still up in arms about this case years later.)
Well, nonprofits are NOT fundamentally different than companies. In terms of the deep fundamentals. I know they are in practice, but in theory, I feel strongly this is not the case! We choose as a society, and as a government, to let them be a little more free with how they raise and spend money because we think that they can bring some social good by doing so, and feel bad about making that super hard for them. Thus we allow them to avoid taxes and certain regulations, often in exchange for following other, different regulations to make sure they actually are categorized correctly. These categories are defined by law, not by any fundamentals.
It's worth taking a second look at good old Amendment 1:
Note that things we consider nonprofits do not in fact line up clearly with the Constitutional categories stated here. Churches are kind of the same thing as Religion, but not entirely! We choose to treat many as nonprofits. How much is convenience, how much is moral arguments as above, and how much is force of ultimate law? Of course note that the Religion bit comes with a different vibe, where it's bad to prohibit free exercise, and they can't establish religion, but presumably there is some sort of sense that mild restrictions on churches might not necessarily prevent free religious (individual) exercise, though by and large we have chosen not to go there. The Press is kind of a bunch of news corporations, but some are nonprofit and some are for profit. Free Speech is something that can't be abridged, and this is connected with the Press stuff via punctuation, but also a bit of a different point, often taken individually. Note that lawyers and scholars have built up some other common law stuff around these, so the text isn't exactly self-sufficient (many free speech exceptions exist despite the language being, on its face, pretty clear: NO ABRIDGING) and caution is warranted to not get too carried away.
Overall however, it's clear The Press is clearly something special and different. I'm not familiar enough with the legal distinction, though maybe I should be. When we talk about corporations, however, we are back to the whole idea that you correctly called out about associations of people. This is tricky. The sound bite that this declared "corporations are people" is not too far off. You seem to agree that functionally speaking, corporations are similar enough to people that we might as well treat them as people (for free speech purposes at least).
It's treating presumably individual rights to apply to big groups of people with no critical thinking involved at all, in the opinion of detractors, that is one holdup. What about makeup of the corporation, does that matter? What if there are a bunch of noncitizens in the company? Running the company? If people within the company disagree, isn't this kinda like "taking away" speech opportunities of the minority view, and giving it to the majority view, which creates a disproportionate effect similar to silencing speech, in effect? Another counter-argument was more of a common law objection about corruption. If a person has and spends a lot of money, maybe that's fine, but if they spend it in a way that is less close to "I have a political opinion" and more close to quid pro quo stuff, maybe that's less fine? Accordingly, you might notice a few precedent cases called into question by the decision included some explicitly about this very issue, collisions with anti-corruption legislation (which in a common sense and common law direction is going to be given some weight). In other words, spending money isn't quite equivalent to speech, it really, really depends on what the money is for. In fact, the SC still distinguishes between direct and indirect (i.e. PAC) contributions AFAIK for only this reason, the corruption potential, though the practical implementation of this leaves... something to be desired.
tl;dr;be less talky: All this long comment to say that your assessment that the case came down to "common sense" conflicting with the actual, practical meaning of the law (and Constitution) is probably correct. But common sense does show up in many First Amendment cases, so this expectation wasn't wholly emotional. And "common sense", though ill defined, is broadly popular.
Thanks for the response. I agree that nonprofit vs. for-profit corporations is not really a relevant distinction ... but Citizens United did not rely on that distinction, so it doesn't have anything to do with the outcome of the case.
Not that clear, actually. There is a live debate about whether the "Freedom of the Press" clause protects "the press" as an industry (professional journalists, newspapers, and media corporations) or "the press" as a type of speech-related activity, which anyone can do. The linked article argues for the latter interpretation, which I think is clearly the better view.
SCOTUS expressly held "We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process ... Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process." In other words, SCOTUS did not address whether Congress could restrict corporate speech based, specifically, on foreign ownership, but since the statute in question applied to all corporations, the statue was not "narrowly tailored" to that concern.
The Court addressed, and rejected, that argument on the following grounds: (1) it applies equally to media corporations, and nobody believes the government should have the power to restrict political speech by e.g. newspapers; (2) there's little evidence such abuses could not be corrected through the procedures of corporate democracy; (3) the statute in question is clearly inadequate to address such concerns, because those concerns implicate all speech in all media at all times, but the statue only applies to certain kinds of political speech, in certain media, at certain times close to an election; and (most importantly, IMO) (4) the statute is at the same time overinclusive--again, not "narrowly tailored"--because it covers all corporations, including those with only a single shareholder. I think these points add up to a pretty compelling argument that the statute in question was "narrowly tailored to address a compelling government interest," but, again, it left open the possibility that Congress could pass a narrower law that would satisfy the constitution.
This issue was also addressed by the court, and found wanting. The big reason is that CU's spending was an "independent expenditure"--it did not give any money to any political candidate, nor to any political party, nor did it coordinate with any candidates or parties. It didn't even endorse a particular party or candidate; it just criticized Hillary Clinton. If CU's spending could be construed as a quid-pro-quo, so could just about any form of political advocacy. Obviously, politicians probably appreciate it when private parties (corporate or otherwise) are critical of their opponents, and unscrupulous politicians might even be tempted to show favoritism as a result--but that clearly doesn't justify Congress banning independent criticism of political candidates!
If by "common sense conflicting with the actual meaning of the law", you mean that ignoramuses misinterpreted, and continue to misinterpret, the Court's "probably correct" decision, I suspect you are likely correct. And in the sense that ignoramuses, in this matter and many others, vastly outnumber those who actually know what they're talking about, I agree that the decision was likely not "broadly popular." But I don't agree that SCOTUS perpetrated a "needless own-goal," in your words, by arriving at a well-reasoned and probably correct decision, just because it was misrepresented and misunderstood by left-leaning pundits and their gulls.
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You are conflating nonprofits, which are simply ordinary corporations structured in such a way that profits are not returned to the shareholders, and charitable organizations, which are a special subset of nonprofit corporations to whom donations are deductible from income for the purpose of income tax calculations. I agree that this is primarily a legislative distinction and not a constitutional one, though the unique status of religions as organizational entities complicates things.
This I strongly disagree with. "The press" (note not capitalized, as in the original) at the time of the Constitution did not refer to institutional media corporations and accordingly they should be given no special constitutional protection. This vernacular meaning did not really come into existence until the 20th century. "The press" referred to a type of technology, to emphasize that freedom of speech didn't apply only to oratory. It definitely did not mean a class of people or corporations.
Yes, it's likely my capitalization and description was a bit misleading on the press point. I wasn't rigorous enough because I felt it wasn't strictly relevant to my overall point, which was more about how "associations of people" and their money use being distinguished as different types is purely a legislative and societal artifact (unless it's corruption-adjacent or the like), and not a Constitutional or rights issue, with the caveat that yes, churches are a special case we often tip-toe around. Well, traditionally. Turns out most people haven't thought about why churches are traditionally tax-exempt at all, or if they have, it wasn't very thought-through (reddit, cough).
Also yes, typically when you say nonprofit people think 501(c)4, and that's what I was rolling with, but you're absolutely correct 501(c)3 and other variants exist. Thanks for bringing up the clarifications.
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The issue wasn't that they made a movie, or that they wanted to show it on TV, but that they paid Comcast a ton of money to make it available for free on-demand. Considering that, most of the time, networks pay the creators to air their media and not vice-versa, this made it look more like a political ad than a normal documentary. I agree that the decision was correct, but the upshot was that PACs that run ads that are virtually indistinguishable from official ads are able to accept unlimited donations, which seems contrary to the spirit of restricted campaign donations. They can't endorse actual candidates, or coordinate with campaigns, but they can run the kinds of relentless attack ads that actual campaigns have been running as long as I've been alive.
This seems to be a common view of the outcome of the decision, but Justice Stevens' dissent makes the point that Citizens United could have poured unlimited funds into publishing and promoting the movie through a PAC without violating the statute. He argues that CU only violated the law by funding the movie through from their corporate treasury, rather than through a PAC. That's a big component of his argument that the 1A wasn't violated; he says the statute didn't ban CU's speech, it just diverted that speech through a different mechanism.
Which, if correct, makes the outrage over the CU decision even more puzzling. None of the critics of CU seem to be saying, "Unlimited campaign finance spending by corporations is just fine, actually, as long as it's done through a PAC rather than the corporate treasury!" That's why I still feel like I'm missing something.
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This seems like a remarkably poor argument. One of the most obvious characteristics of advertisement, relative to other forms of media, is that the people they are supposed to be consumed by aren't demanding them. If I make a movie and offer to pay the theatres to screen it for free, that is very, very different from me making an ad, and paying the theatres to play it before the movie other people actually want to see. As a general rule, ads are not made exclusively and intentionally for optional viewing.
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Well this itself is pretty contradictory to the whole idea of freedom of speech anyways. So its kinda a feature of the 1st Amendment. The problem with CU is it split the baby instead of negating all federal campaign finance law.
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Seconded.
One of the few times i can recall actually having my mind changed in an internet argument was somone making the argument that CNN, the Washington Post, FOX News, Et Al were all corporations and if "freedom of the press" didnt protect them, who did it protect?
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The press misreported it for political reasons and people believed them.
I don't think the press even misreported it. The talking points were true. It did in fact allow unlimited money from corporations to be poured into political advertising. They just expected people to laugh at the absurdity of considering money (in the form of advertising and advocacy) to be a form of speech.
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