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So this morning I am inspired by a clip from the otherwise-decent (from a libertarian perspective) movie Captain Fantastic. In the scene, a small child laments the pernicious implications of the Citizens United ruling, saying it means "our country is ruled by corporations and their lobbyists." I'm wondering whether, as a matter of rhetoric, it would be effective to embarrass people with the specific facts of the Citizens United v. FEC case. "Defend this, if you dare!" While for many, that descision represents all that is evil as they champion the high-minded principle of "preventing corporations from buying elections," I suspect few would defend the particulars of how the law would have applied in that instance.
The usual story is this: the Supreme Court decision's decision in Citizens United opened the floodgates for corporate money to dominate American elections, as the Supreme Court outrageously declared that "corporations are people." But this portrayal overlooks the specific and basically indefensible details of the case itself. Citizens United, a nonprofit organization, sought to air a documentary critical of Hillary Clinton leading up to the 2008 primary elections. The Federal Election Commission blocked the documentary, citing campaign finance regulations that restricted "electioneering communications" by corporations and labor unions within a certain time frame before elections.
Imagine an analogous case today: a group of citizens is determined to prove that the prosecutions against Donald Trump are not politically-motivated "lawfare", but rather solid and legitimate cases, and produces a documentary to make that argument, only to be blocked by from disseminating the film. Is this not an outrageous position for the government to take?
Opening up this line of attack could easily backfire: if I make people defend the facts of specific Supreme Court cases, I am sure they can find their own Supreme Court decisions which I like, but which side with unsympathetic parties. I don't really want to stand up next to the guy holding a "God hates fags" sign. But the iconic and notorious status of the Citizens United case in popular discourse deserves some effort at pushback.
tl;dr: If you are so worried about for-profit corporations buying elections, why not pass a law that is narrowly-tailored to prevent just that, without going after someone who creates a kickstarter for their latest documentary "Trump: the Orange Menace"?
Not saying I disagree with the decision, but the issue with that film in particular was not so much that it existed but the means by which they intended to get it on television. In a normal situation you'd make a film and then shop it around to networks with the idea that they give you money in exchange for the rights to air it, the idea being that the network would be able to cover this cost through advertising or subscription fees or whatever. The producers at Citizens United never attempted to do this. Instead they wanted to pay Comcast to make it available on-demand. The on-demand element complicates things a bit, but keep in mind that in most situations where a producer is paying a network to air content it's in the context of leased access sold to advertisers. This makes it a thornier question because most of the stuff that we view as legitimate discourse isn't being paid for by people who have a stake in how we react to it. If a popular automotive review show gives the new Ford Bronco a good review we give that review a certain amount of credibility. The amount of credibility we give it changes if we know that someone paid them to give it a good review. There's a fine line between commentary and advertising, and the rules about what you can do if something's an ad are a lot different than if it's just a genuine expression of opinion. To my recollection, Citizens United didn't even try to pretend that it wasn't an ad and instead leaned into the First Amendment aspects. I'm not going to offer an opinion of whether the court was right or wrong here, I'm just pointing out that the case wasn't as clear cut as one may assume based on the facts alone. It was pretty clear from the beginning that the case was mostly about political advertising and whether outside groups could run unlimited ads.
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The court took it upon itself to write a much broader opinion than was necessary to decide the case, and it's this opinion that the people object to. I don't care to defend the FEC's original position, but I don't think it's as obviously wrong as you suggest -- the movie was allegedly long-form campaign ad, and that is a fact that could be tried by a jury if needed.
You ask:
This is exactly the type of thing that the decision prevents. In fact, the kickstarter would have been strongly protected already as private speech. Corporations, as creatures of the state, should be able to have their speech limited by the state, which was the law prior to CU v. FEC.
They're 'creature of the state' but uh, they also do not exist independently of the people that invoke the state's rules to create them.
The fundamental question is how you can recognize individuals' rights to free speech, including the right to spend money on political messaging, and yet NOT recognize that a group of individuals organizing as a corporation and pooling their funds to spend on political messaging are just invoking the exact same right they each individually possess.
I mean, sure, you could say that the state is entitled to define the rules under which corporations operate at all, but they can still avoid running roughshod over the 'fundamental rights' that citizens are supposed to posses irrespective of the state's position on them.
Extending your logic to its furthest reaches would also enable an end run around other constitutional rights. The Second Amendment says people can keep and bear arms, but if people want to form a company to manufacture and sell firearms, they can get shut down unilaterally? The Fourth Amendment protects people against unreasonable searches, but why should internal corporate communications have such protection? Nevermind that it is people who are 'exercising' the rights in either case, if a corporation can be punished or shut down for performing actions that would be constitutionally protected if an individual performed them, then there's an argument that a corporation can escape that punishment by simply paying some separate individual to do it for them.
"Oh, so corporations aren't allowed to spend money on political campaigns? Okay. Well we just sent 1 million dollars over to Bob, and Bob just happened to spend it all on a given candidate in a given race. Are you saying Bob doesn't have freedom of speech?"
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Does this apply to media corporations? Or do I have to be the sole owner of a newspaper to have speech rights and if I incorporate I give them up to the state?
And if a megacorp like Amazon (or technically Jeff Bezos) buys a newspaper, does that newspaper suddenly lose its speech rights?
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Yes, to retain the spirit of freedom of speech there needs to be some sort of balancing. As you suggest, giving full government control to corporate speech seems wrong, but so does treating, say, Exxon-Mobil as if they were a biological citizen in that regard. I don't think the law is written here -- at the time of founding corporations were rare and presumably the framers would likely have little issue with restricting their rights. In that case history and tradition reasoning sends the issue to the legislature, though other types of interpretation leave roles for the courts.
"Congress shall make no law... abridging the freedom of speech, or of the press;"
Those words mean something to some of us...
Something indeed, and apparently something different to you than what they meant to the people who wrote them.
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All of this Citizens United stuff kinda rests on the assumption that money in politics actually has much of an effect at all.
From what I've read it doesn't really change the outcomes anyway; e.g. Steven Levitt (of Freakonomics fame) conducted this study where he controlled for the fact that politicians who are more likely to win get more donations in the first place, and concluded that extra campaign spending has an extremely small impact on election outcomes.
Does money matter in business?
There are all kinds of startups that produce huge companies with very little money. Jeff Bezos started Amazon in a garage somewhere. Meanwhile billions have been spent on unsuccessful ideas like the metaverse. Sure, there are the Venture Capitalists that invest in businesses but they probably just pick ones that are more likely to succeed anyway. OK, this is a strained metaphor but you see my point. There's a certain way of seeing things where money really doesn't matter that much in business but the idea is so perverse it's ridiculous.
I say that money is instrumental to politics in the same way that money is instrumental in business. The more money the better. It's not the only thing you need but it is very useful. You need a bare minimum of money to get into politics. But then money can buy influence, you can bribe people in legal (or illegal) ways. You can threaten to donate to opponents to influence people. You can arrange to get positive media coverage, you can use agenda-setting power to make yourself seem like a 'favourite' or 'a serious candidate' right at the start. You can hire muckrakers, staff, strategists, speechwriters. Money makes the world go around. Politics is nothing if not worldly.
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This is a very narrow view that ignores second order effects. If I know this is how the system works, I'm not even going to consider representing positions that will attract no donations, because the donators have no interest in advancing those positions. I can't just campaign with no money, because the function of the money is to make people aware that I'm running and get me in their mind in the first place.
I feel like someone like Steven Levitt is probably a smart person, who has surely thought of this very obvious dynamic, and it really makes me question his sincerity on anything else he has to say.
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Citzens United wasn't really about money, though; it was about campaigning. Hillary Clinton was trying to prevent people from campaigning against her on the grounds that spending money to do so was illegal.
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Yeah, spending is definitely not sufficient. Michael Bloomberg spent hundreds of millions of his own money and never cracked single digits in the Democratic primary. And, IIRC, Trump's spending in 2016 was actually quite small relative to other candidates.
Marketing is useful for driving brand awareness, but people aren't going to buy a poop sandwich just because they saw it advertised on TV.
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Surely it can tip tight races and there also must be a floor or a minimum amount one needs to run a campaign at all. It might not be THE factor but it is A factor for sure. If no one hears your message then it doesn't matter how good it is.
I'm pretty firmly of the opinion that there is a sharply diminishing marginal effect in terms of electoral outcomes, and the practical impact gets maxed out quickly. It's easy to point out examples where massive spending achieved approximately nothing (Michael Bloomberg, Carrick Flynn, etc).
But even so, there can still be a corruptive effect if politicians believe that money buys elections, and most of them do.
I think the world has changed. Money in politics had more influence 2 decades ago because the media landscape was controlled by tv which costs money for ads.
I think most politicians have begun to realize this. The new reality is influencers on social media can level any money edge. Ad spending has close to zero effect on me. What people talk about on twitter does affect me.
Money does seem to be beneficial for the ground game part of elections. Zuckbucks probably did flip Wisconsin. Still that took a lot of money. This election will have Musksbucks on the other side and Zuckerberg hasn’t backed Trump but has recently said he admires him.
For ground game to matter you probably need to be close enough already. Though I might even be underestimate long term ground game. Cali is locked in left because of the Dems infrastructure and Jeb Bush really started turning Florida red with infrastructure. Those things are one part competency and one part money. Once built out they largely self-fund.
I would be interested on how close to the line Zuckbucks are since they are not exactly speech but funding supposedly neutral ground game.
The best example I can think of off the top of my head of money winning election is in the Democratic primary for the Pennsylvania 2014 gubernatorial election. Tom Wolf was a businessman from York who had briefly served as state treasurer several years prior, not exactly a guy with strong name recognition. But he declared early and bombarded the state with TV ads before most of the field even had their campaign apparatus together. He had such a commanding lead, with the remainder split among several candidates, that he was able to start attacking Corbett directly weeks before the election. Granted, that was his own money and not PAC money, and the field was relatively weak, but it shouldn't have been that much of a cakewalk for a guy who had virtually no public profile before that.
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I hear that, but you do know those names, without massive stacks they would never even have been in the conversation.
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If you read the wiki about this history of the case its even worse. Citizens United made a complaint about Michael Moore's film that was rejected, then they produced their own films on that basis and the FEC went after Citizens United.
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The issue isn't the specific fact pattern (which, as you say, is a slam dunk for CU) but that anyone can manufacture that fact pattern. The charade of setting up a separate entity that receives unlimited contributions and then makes independent expenditures doesn't actually change the underlying state of affairs.
There's no set of rules that prohibits that kind of laundering without also sweeping in sympathetic plaintiffs like CU.
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