The Supreme Court’s decision in Citizens United v. FEC is a big victory for free speech. Unfortunately, it was a 5-4 decision, with the “liberal” justices opposing free speech. (How badly screwed up is our political nomenclature when the preceding sentence makes sense?)
The liberals complain that corporations are not real people, and thus are not entitled to free speech rights. Of course, no one says that a corporation is a real person: they can’t vote, serve on juries, etc. But who exactly, do the “liberals” think make up a corporation? Androids? Ghosts? Aliens? No, corporations are made up of people, just as are all other organizations. The “liberal” position is that a person should go to prison for speaking about a candidate during an election, if that speech was part of the activities of a corporation. Make no mistake, the “liberals” want to send real people to prison for engaging in speech.
But only certain people. The “liberals” want to criminalize the speech of some but not others: If you’re part of a sole proprietorship or a partnership, you’re good. If you’re an individual who extracted his wealth from a corporation, you’re good. If you’re part of certain corporations (those that have a media component), you’re good. But certain people that work for certain organizations (i.e., corporations without a media component) should go to jail for speaking. And keep in mind, it’s not just big for-profit corporations, it’s also (as the court’s opinion notes) groups like the Sierra Club, NRA, or ACLU whose members could be sent to jail for speaking about a candidate during an election.
The “liberals” also complain about how radical the decision is. In fact, the decision merely reverts to the precedent that was in play until fairly recently. For example, in its 1978 First National Bank of Boston v. Bellotti decision, the court ruled (as quoted in Citizens United):
We thus find no support in the First . . . Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. . .
In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.
It was not until 1990 that the free-speech train went off the rails in the Austin v. Michigan Chamber of Commerce decision. That decision invented a flimsy new government interest (antidistortion) that the Obama administration didn’t even bother to defend. Even more bizarrely, Austin somehow found that a complete ban on political speech by corporations was narrowly tailored to address the antidistortion interest. Citizens United is a good decision, and one that never should have been necessary.
One cannot help but think that the real reason the left is so upset about Citizens United is that they think it will hurt them. In that regard, I think that they are worrying for nothing, for two reasons:
First, Citizens United unshackles labor unions in addition to corporations. True, corporations have more money, but labor unions are much more political. We can expect that labor unions will use their new freedom much more than corporations typically will.
Second, large corporations obviously have more money to throw around than small corporations, and while small business overwhelmingly tends to support small government (and therefore the GOP), big business often supports big government. While excessive regulation strangles small businesses, large businesses have the resources to survive it. In fact, large businesses often lobby for regulation because it drives out their smaller and more nimble competition. Plus, businesses love it when the government buys things with tax money that individuals weren’t interested in buying on their own.
So I don’t think that the post-Citizens-United landscape favors the GOP as much as the left fears it does. In fact, I think it favors the Democrats in the long term. In the short term, however, the Democrats have been so flagrantly anti-business that they probably will take a hit. They deserve it.
Finally, one prediction. Citizens United exacerbates an already strange political situation in which the politicians have the weakest voice in politics. Fund-raising limitations put severe burdens on politicians and parties that others who spend their own money don’t have. Since politicians make the rules, I would be surprised to see them remain disadvantaged for long. Expect very soon to see proposals to raise or even to remove limits on campaign fund raising.