Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

Shed a tear for Democracy

Jerry Stratton, July 2, 2011

I got a letter from Robert Weissman of Public Citizen on Thursday, telling me to “shed a tear for Democracy” and telling me that I must “show my outrage” over the Supreme Court’s ruling in Citizens United v. Federal Election Commission. Public Citizen thinks that the laws the Supreme Court ruled against don’t go far enough: they want government funding of elections. Their version of Democracy is the government doling out money to candidates that meet with the FEC’s bureaucratic approval, and blocking a candidate’s supporters or an issue’s advocates from supporting a candidate in the 30 or 60 days prior to an election—when, as Roberts and Alito wrote in their concurrence, it matters most:

Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.—Justice John Roberts and Justice Samuel Alito (Citizens United v. Federal Election Commission)

Public Citizen, and others, are trying to push the idea that corporations are some sort of alien thing made up of robotic hive insects. But corporations are people. Corporations are one form of people associating together. People make decisions for corporations. People own stock in corporations, vote on corporate actions and benefit from corporate success. Further, the pre-Citizens United law is at odds with what people say they want when they say they disagree with the Citizens United. Before Citizens United, “all” a corporation had to do if they wanted to join a campaign was to hire a bunch of lawyers and accountants and media spokespeople, and form a PAC. The system seemed designed to favor larger, richer corporations over family corporations and non-profit advocacy groups like Citizens United. The law favored the very people that Public Citizen rails against.

Who is Citizens United? A non-profit advocacy group, very much like Public Citizen. Citizens United had made a documentary about Hillary Clinton and they wanted to air it during the 2008 primaries. The government, in the form of the Federal Election Commission, argued that it had the power under the constitution to prohibit the publication of books and movies if they were made or sold by corporations. As the court wrote,

The Government’s asserted interest… would allow the Government to ban political speech even of media corporations… The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from corporations.

The Supreme Court’s decision was supported by advocacy groups as diverse as the NRA and the ACLU. You look at the list of people complaining about the decision, and it’s practically all beltway politicians. And Public Citizen joins them arguing that the case was not about free speech. If I manage to sell one of my satires, I expect it to be published by a corporation. If I want people to read it, I expect it to be sold by corporations. Barnes & Noble is a corporation; so is Borders; so is the parent company of HarperCollins and the parent company of Random House.

As a writer, the government’s argument against Citizens United was chilling. If upheld, it would have been a green light in the future to banning any book or movie. And yet Public Citizen asks me to “shed a tear for Democracy” because the Supreme Court decided against the government position. What do they think Democracy is? Government control of election discussions? Banning anti-establishment advocacy?

One interesting, and frightening, argument that the dissenting justices make is that, because the founders disliked some associations, such as corporations, those associations shouldn’t have freedom of speech. Look on pages 35-37 of the dissent. They go from disparaging quotes from the founders about corporations directly to it being “a given” that those associations have no freedom of speech. Politicians dislike you and it is thus a given that you don’t deserve freedom of speech. That, too, is a chilling argument.1

The Citizens United decision was ultimately exactly what we should want to see: regulations that help inform us, rather than that try to hide information from us.

The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

In other words, the government can mandate more information, but not ban information.2

Some of the worst aspects of the laws that the Supreme Court struck down in Citizens United were that they effectively required government approval.

The FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests3… Those choices and assessments, however, are not for the Government to make… Citizens must be free to use new forms, and new forums, for the expression of ideas.

Further,

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

The court goes on to say,

The censorship we now confront is vast in its reach… By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.

The Citizens United decision does not overturn a century of law, as Public Citizen quotes the President as saying, nor does it even overturn the seventy years of law that people who understand math claim. It mainly overturns Austin v. Michigan Chamber of Commerce, a 1990 case that itself has never been revisited by the Supreme Court and which itself was an “aberration” departing “from the robust protections we had granted political speech in our earlier cases.”

What Roberts and Alito wrote in their concurrence regarding narrowness applies just as well to precedent: it can’t just be precedence, “it must also be right”. Read the opinion before trusting other people’s opinions that Citizens United was not rightly decided.

“All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.”

In response to Mimsy Election Mailbag: Let’s see which politicians prefer the post office to the Internet, and what they say when they do.

  1. The dissent seems to want a complex system requiring people to hire lawyers and accountants before they speak.

  2. Justice Thomas, in his concurrence/dissent, makes a compelling argument in favor of anonymity, citing death threats and blackmail attempts against publicly disclosed donors.

  3. For example, Fahrenheit 451 got to air during the 2004 elections, but In Search of the Second Amendment did not.

  1. <- Proposed Republican agenda
  2. The crap I get ->