Citizens United vs. FEC

Few things fill me with a greater sense of nostalgia then when I get to agree and make common cause with my conservative friends. I'd have thought that my objection to wholesale expansion of government surveillance and detention powers would more often have done the trick on that score, but for reasons that surpass understanding, the ground has proved less fertile than I imagined. Today, however, huzzah! A partial sliver of a half-hearted alignment, in the case of Citizens United vs. the Federal Election Commission.

In a 5-4 decision, the Supreme Court has struck down regulations limiting corporate and union sponsorship of campaign advertisements. (Hey, surprise, George Will loves it! Dahlia Lithwick hates it! Moving on.) Justice Kennedy's opinion trumpeted the Court's ruling as a triumph for free speech, while Justice Stevens' heartfelt dissent lamented the coming tsunami of profit-seeking short term influence into the electoral process.

Make no mistake - outsized corporate influence of congressional and presidential campaigns is at the heart of every single policy dysfunction in this country, from health care to defense to banking to agriculture subsidies. Congress is collectively 100% beholden to the ongoing interests that fund the ambitions of its members, and while I do find the entire corrupt edifice flatly disgusting, it's a mistake to place all the blame for it on the corporations themselves. If you're angry (and you should be), focus your ire on a) party leaders that select candidates based on their ability to raise money rather than their talent for serving the public, b) individual politicians who care more about getting and staying in office that about anything they might be able to accomplish while they're there, c) a press that abdicates their responsibility to insist on disclosure and accountability, and most importantly, d) an uneducated and passive public who prefers to participate in partisan cage matches and root for the home team than they do about real results.

However satisfying it might be, in this theater of the absurd, to restrict the amplification of corporate speech when we find its effects distasteful, the First Amendment simply does not permit it. The framers didn't even put a helpful little caveat in there, like "a well-regulated militia being necessary"...there's no wiggle room on freedom of expression, save imminent danger. (There are some interesting arguments out there as to whether corporations are entitled to as much freedom of speech, but they are unconvincing to me. Happy to discuss.) More fundamentally, however, is the fact that Constitution or no Constitution it's almost never a good idea to try to fix a imbalance in the marketplace of ideas through authoritarian censorship.

To use an analogy which I hasten to point out is loose and merely illustrative in nature (so no one freak out), a few years ago the President of William and Mary used his discretionary authority to remove an Anglican altar cross from permanent display in the College's oldest chapel, where by custom it had been for nearly 100 years (there were built in exceptions for non-sectarian events held in the chapel). The President's reasoning was that the Cross, and its attendant Christian expression, created an unwelcoming environment for students and faculty who did not share the faith. The fact that the President was never quite able to empirically justify these concerns, or even properly articulate them for that matter, was somewhat beside the point. At issue for myself and others was that by deciding for himself the proper levels of amplification of various points of view, he was (inadvertently, we presumed) making the campus a less diverse place, not a more diverse place. A legitimization of administration-imposed limits in one arena held the specter of indeterminate limits to be imposed elsewhere in the future; and the costs of that kind of regulation ultimately outweigh the benefits. What the President should have been doing to satisfy his diversity agenda, rather than attempt to dampen what he perceived as a dominant voice, was work tirelessly to ensure that a wide variety of avenues and opportunities for expression remained open and accessible to all, and then let the marketplace work. Secondarily, he could have focused his attention on correcting any negative consequences of a dominant Christian expression - if he could find them, that is - as opposed to focusing on the expression itself. (I pause here to note that the President's other, somewhat vague argument - that there were Establishment Clause concerns in play with the Cross given the school's state status - was also well countered and disposed of by our august opposition committee, but that's another post for another time.)

Similarly, the appropriate remedy for outsized corporate spending in the democratic process isn't arbitrary limits on corporate spending. If corporate spending is indeed dominant, that can be remedied by improving the abilities of individual citizens to organize and make their voices heard. Some of this government can help with, through vastly expanded public campaign financing options (public money that would be very well spent), and some of it is plain old fashioned grass roots on our own dimes. Barack Obama's primary campaign (though not his general election campaign) proved that this is at least possible, and entrenched interests can be defeated - so there's no reason to throw up our hands now. The other thing that absolutely must be done is to impose stricter limits and harsher penalties on the means by which politicians are personally enriched by their corporate relationships, by exploring things like term limits, tighter restrictions on the revolving door to the private sector, more stringent disclosure rules, etc. The incentives for our illustrious leaders need a thorough recalibration - and that can be achieved by the democratic process.

Of course, that's all theory. In practice, the political environment at the moment is unlikely to support any of these things, at least in the short term - but as I said, we really only have ourselves to blame for that. No one ever said that advanced citizenship is easy, but it seems a small price to pay in the end. We need to work to find the hidden interests and stop rewarding the violators by continuing to send them back to office. Throw them all out and demand better, even if it damns the whole broken two-party system in the process.

In recognition of the very real difficulties we face, however, I will go so far as to say that the Court was in no sense obligated to rule as they did, even if all else being equal, I agree with them on principle. As Richard Hasen outlines, this decision was actually among the more egregious cases of judicial activism in recent memory, given the long-standing case law in play. Historically the Court has refrained from making grand Constitutional pronouncements except in extreme circumstances - and a dearth of corporate money in the system doesn't remotely qualify. Again, that doesn't make it wrong on the law, but it does make it politically insensitive and probably unwise. It also shows the real-world consequences of having right-wing Presidents appointing justices to the Court (Roberts and Alito joined the decision, Sotomayor dissented). A silver lining of the whole she-bang might be that we can finally put to rest the notion that only liberal justices "legislate from the bench."

In any event, progressives, don't lose too much hope - something tells me this ruling could come in very handy if, say, Sarah Palin gets the GOP nomination. It all began over something called "Hillary: The Movie"...what's good for the goose, and all.