I have been riveted by yesterday’s re-argument of Citizens United v. Federal Election Commission before the United States Supreme Court. I mean who hasn’t? At stake, as they say in media newspeak, is the entire state of campaign finance law (the astute reader will note the choice of words in this sentence and smile.) The Quantum Pontiff is not a lawyer, but he is the son of a lawyer, and greatly admires the ability of supreme court justices to herd the truth in directions more palatable to their preexisting exquisite judicial tastes (why is everyone staring at Justice Scalia?) So I would like to present to the court, if I may, some unintended consequences of their ruling in this case which they perhaps have not yet considered and which may sway the bench in its final, unbiased, empathetic, states-right based decision.
Citizens United v. Federal Election Commission is an odd case. Its origin is in the 2008 primary election when a conservative nonprofit organization, Citizens United, wanted to run ads for a movie critiquing Hillary Clinton, who was then a presidential candidate in the Democratic party primary elections. Citizens United also wanted to show the movie on a video-on-demand channel. In January of 2008 the District Court for the District of Columbia (hey that’s not even a state!) ruled against Citizens United citing violations of the McCain-Feingold Act. In particular the court ruled that the ad was an “electioneering communication” and thus subject to financial and disclosure regulations of the McCain-Feingold campaign finance law. This meant that Citizens United would have to disclose its financial backers in its ads for the movie. In addition,the court ruled that it would have to pay for the costs of airing the movie on video on demand and be prohibited from paying for this using corporate treasury funds. These were two things Citizens United did not (or could not) do.
Enter the Supreme Court (stage right.) The Supreme court heard the case in March of 2009 and was expected to rule early this summer. Instead, the Supreme Court ordered a re-argument of the case under a much broader context of whether the court should reconsider its past rulings on the ban of corporate money in elections. This re-argument is what happened yesterday. Interestingly the government backed down significantly from its earlier arguments that the video on demand was electioneering communication (and the even more outrageous claims made in March about McCain-Feingold applying to books.) Sensing an opening (and five votes) the lawyers for Citizens United pushed their case further into whether the ban on corporate funding was constitutional.
Okay, so that’s the outlines of the case. And of course there are broad political lines drawn all over this case. In particular the more conservative portion of the court is more inclined to favor overturning the banning of corporate money in elections while the more liberal portion of the court is inclined to keep the ban in place. In thinking through this case the other day, however, I was struck, much, I’m sure as Godel was upon getting his U.S. citizenship, with a major flaw in the logic of the conservatives side of the case. Or if not a flaw in logic, a consistency that I’m guessing would send Justice Scalia’s butt running for the exit.
A major basis for the argument that corporations should be allowed to spend money on election ads is extremely simple. Let’s get it from those involved in this case. (Mr. Olson is representing the Citizen United side)
JUSTICE GINSBURG: Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual? A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?
MR. OLSON: What the Court has said in the First Amendment context, New York Times v. Sullivan, Rose Jean v. Associated Press, and over and over again, is that corporations are persons entitled to protection under the First Amendment.
(this is followed by a very crafty Ginsburg trying to challenge this idea based upon foreign ownership of corporations…a trick right out of mad dog Scalia’s playbook.) Corporations have free speech rights protected by the first amendment, and thus they should not be banned from election communications (there are about a trillion subtle points involving the words “compelling government interest” and “narrow tailoring” here, but let’s just run with it.)
In thinking about this last night, it occurred to me, as Justice Ginsburg alludes to above, that the extension of the rights of individuals to corporations leads down a slippery slope. I for one would ask the following question. Supposing that we grant the rights of individuals to corporations, free speech, protection from unreasonable search and seizure, protection from quartering of troops, etc. Well then I have a question. Why are we allowing the merger of Inbev Inc. and Anheuser-Busch Companies, Inc?
I mean certainly Inbev and Anehuser-Busch are male (beer is male.) But if these are individuals, then well I do not understand why this merger is different in any manner, than, well, a marriage between two men. Indeed looking over recent major mergers I can only conclude that there is rampant male on male corporate marriages occurring everywhere! (Sorry Zappos and Amazon, you don’t qualify.) So I would ask, Justice Scalia, how you can square your clear support against gay marriage with the millions of mergers between two
individuals corporations of the same sex? One day your repelling campaign finance laws, and the next, well, the homosexual agenda will have been triumphant!
[The Quantum Pontiff is, as stated earlier, not a lawyer, nor a homophobe, nor, sadly, a Supreme Court justice. He greatly amuses himself, however, by watching readers read his long flimshaw blog posts. Thank you for your time.]