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Citizens United and 100 Years of Law?
October 5, 2011 9:30 AM   Subscribe

How does the Citizens United ruling "roll back 100 years of law"? As far as I can tell, it only allows corporations (= companies and unions) to do in the 30 or 60 day run-up period before an election what they've always been able to do before those cutoff dates.
posted by luke1249 to Law & Government (32 answers total) 1 user marked this as a favorite
 
It didn't. That's why Justice Alito correctly mouthed "Not true" when Obama made this false claim in his State of the Union address.
posted by John Cohen at 9:36 AM on October 5, 2011 [3 favorites]


Also, the ruling was based on the free speech clause of the First Amendment, which is more than 100 years old. Even if the decision had "rolled back 100 years of law," this would be the right thing to do if necessary to protect people's right to free political speech. Citizens United can only be wrong if it was wrong in its free-speech analysis. I fail to see how the age of the laws it was undoing is relevant to whether free speech was being infringed. In fact, the longer people's right to express their political opinion has been infringed, the worse the infringement is, right?
posted by John Cohen at 9:42 AM on October 5, 2011


I agree with you. But what puzzles me is where the media narrative came from? Obviously (or not?) someone must have misunderstood what the ruling meant. Where is the origin of that misunderstanding?
posted by luke1249 at 9:51 AM on October 5, 2011


IANA(Constitutional)L. I think perhaps the origin of the phrase comes from Justice Stevens' dissent. In particular:

The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm., 459 U. S. 197, 209 (1982) (NRWC) , and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id. , at 209–210. The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990).

Stevens takes issue with the concept of corporate personhood throughout,

Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.

posted by bessel functions seem unnecessarily complicated at 9:54 AM on October 5, 2011 [4 favorites]


I can't speak to the "100 years" thing, but there's a BIG difference between doing things in the immediate 30 or 60 days before an election, and doing things earlier than that. Most people aren't paying attention six months before the election, so a smear campaign would have much less effect.
posted by yarly at 9:55 AM on October 5, 2011


Obviously (or not?) someone must have misunderstood what the ruling meant. Where is the origin of that misunderstanding?

Scads of legal scholars think that this is a very significant ruling changing the law dramatically -- it's not a "misunderstanding" at all. Why don't you start your reading here.
posted by yarly at 10:00 AM on October 5, 2011


Also, the ruling was based on the free speech clause of the First Amendment, which is more than 100 years old.

The ruling was also based on a latticework of much younger issues, including corporate personhood and, much more importantly, speech in the form of money.
posted by Sticherbeast at 10:03 AM on October 5, 2011


The ruling was also based on a latticework of much younger issues, including corporate personhood

Corporate personality is a common law concept dating back almost as long as corporate entities have existed, i.e. at least three centuries. It was invented to permit them to be sued, as in the absence of that legal fiction, there was absolutely no remedy for torts committed by a corporation. Corporate personality was discussed in the first treatise on corporate law, published in the eighteenth century.
posted by valkyryn at 10:09 AM on October 5, 2011 [2 favorites]


The idea of corporate personhood may have old roots, but the legal concept has also evolved quite a bit over those three centuries, including but not limited to a burst of activity in the late 19th century and the concept's interaction with the 14th Amendment. I'm not bothered by corporate personhood per se, but it's not as if it burst fully-formed from Zeus' head in the eighteenth century.
posted by Sticherbeast at 10:13 AM on October 5, 2011


The idea of corporate personhood isn't some novel thing that was invented by Citizens United, overturning 100 years of law. Of course corporations have free speech. When has the Supreme Court ever said that a newspaper or magazine (corporations) don't have a right to express political opinions?

And yes, "corporate personhood" is a legal fiction. But "legal fiction" isn't always a bad thing -- it's classic first-year-of-law-school talk to help explain a lot of legal concepts. A legal fiction is often a useful fiction, and corporate personhood is. As Mitt Romney correctly pointed out, a corporation is ultimately just a bunch of people. It's a legal/organizational structure that allows human beings to do stuff they want to do, including express their views on political candidates. For instance, the blogger Matthew Yglesias has pointed out (in a long video conversation, not necessarily searchable through Google) that he has been forbidden from endorsing candidates since he writes for a corporation, ThinkProgress. I think that's a huge problem.

A lot of this has to do with an irrational emotional reaction to anything non-negative being said about a corporation. People need to think more clearly about what "corporate personhood" really means. It's easy to villify it, but I wish people would stop and think about it.

And that quote of the Stevens dissent actually shows how people have gotten their misunderstanding. Just because "1907" shows up in a dissenting opinion doesn't mean the majority overturned 100 years of law. Citing a statute from 1907 doesn't undermine the Citizens United ruling about the constitutional limitations of how much a legislature can forbid people from expressing political opinions under the First Amendment! Even citing constitutional SCOTUS holdings from the past doesn't show that SCOTUS got the constitutional analysis right. SCOTUS is allowed to overturn its own holdings, and stare decisis doesn't inevitably trump SCOTUS's present-day understanding of the Constitution. That's not to say SCOTUS did or didn't adhere to stare decisis in Citizens United -- I have no opinion on that. I do feel strongly that the Court should enforce the First Amendment even if -- no, especially if -- a lot of people dislike the political consequences of that decision.
posted by John Cohen at 10:21 AM on October 5, 2011 [2 favorites]


Yarly, the link you posted doesn't address the 100 year thing. Richard Hasen makes an interesting point about foreign money influencing elections, though. However, two things:

1) They've always been able to do it in the 30 or 60 days before an elections, so my urge to shrug my shoulders at that objection remains.

2) foreigners living in the US have always had first amendment rights to talk about elections. Should I tell all my Mexican friends to quit saying they wish Marco Rubio would throw his hat into the race because they're unnaturally influencing an election they aren't allowed to participate in?

I don't know if this counts are forking the discussion or whatever, so feel free to ignore.
posted by luke1249 at 10:34 AM on October 5, 2011


Also, Yarly, you say that there's a difference when political speech is made, but that's exactly the point the Court was making, isn't it? If Michael Moore (acting as a corporation) gets to distribute Farenheit 911 in during that run-up period, why shouldn't other corporations?
posted by luke1249 at 10:36 AM on October 5, 2011


I can't speak to the "100 years" thing, but there's a BIG difference between doing things in the immediate 30 or 60 days before an election, and doing things earlier than that.

The ban on "electioneering" ads within 30/60 days of an election only dates from 2002's BCRA.
posted by ROU_Xenophobe at 10:50 AM on October 5, 2011


I actually don't know much about the specifics of Citizen's United and the accuracy of the 100 years claim. But what I do know is that the perception of Citizen's United as a huge, game-changing decision is shared by many educated observers -- it's not some misapprehension spread by the media. I think even John Cohen would agree on that.
posted by yarly at 10:51 AM on October 5, 2011 [1 favorite]


Ok, this blog post explains some specifics on the 100 years thing.

Ultimately, "100 years" and the specific conduct allowed by Citizens United is a bit of a red herring -- plenty of people think that it was an extremely important case that changed campaign finance law considerably, whether or not you agree with those changes.

For instance:

Clearly operating on the premise that the Supreme Court last week changed the entire legal landscape for money in politics, the D.C. Circuit Court appeared on Wednesday to be leaning strongly toward giving even more freedom to campaign groups that are set up to operate independently of candidates and parties.
posted by yarly at 10:56 AM on October 5, 2011


That's certainly the way it's been portrayed in the media. You'd have thought that every election since the ruling would have been won by a Republican to judge by the panic on the left after the ruling. That hasn't come to pass, though.

I'm definitely interested in hearing academics' takes on this. I've googled around a lot, but I can't find much really that explains why this is the dramatic game-changer the media portrays it to be.
posted by luke1249 at 10:57 AM on October 5, 2011


Of course corporations have free speech. When has the Supreme Court ever said that a newspaper or magazine (corporations) don't have a right to express political opinions?

Having no opinion of the CU case, I'll point out that this is obviously a poor argument. Newspapers and magazines have separate protection, being members of the press and all.
posted by coolguymichael at 11:54 AM on October 5, 2011


Having no opinion of the CU case, I'll point out that this is obviously a poor argument. Newspapers and magazines have separate protection, being members of the press and all.

Actually, the argument isn't really all that bad. "The press" is not really a legal concept, as much as the media might like it to be. All it means is that the First Amendment protects the written word as well as the spoken word. The two have basically been conflated into "freedom of speech," and the First Amendment does not contemplate any kind of special constitutional role for the media.

The question then becomes who gets the protections of the First Amendment. If it only applies to natural persons, than you can't form a corporation to do journalism, because the government would be able to regulate that.
posted by valkyryn at 12:05 PM on October 5, 2011 [3 favorites]


I'm definitely interested in hearing academics' takes on this.

The links I've provided already (to Rick Hasen and Lyle Deniston) are representative of what some widely acknowledged experts in election law (Hasen) and the Supreme Court (Denniston) think. It's not just "media spin."

Having not followed the case in detail, I can't explain to you why it's considered so momentus, except to say that it definitely is considered very important and game-changing by election law experts & Supreme Court watchers.

I think you're barking up the wrong tree to to think that you have to see immediate, tangible changes on the ground in order for a Supreme Court decision to qualify as "groundbreaking." For instance, I live in DC, and I haven't really noticed any changes in my life since the Supreme Court decision protecting the individual right to bear arms here was handed down. Nevertheless, that was DEFINITELY a ground-breaking decision, legally speaking, and has widely impacted the class of people interested in bearing arms.
posted by yarly at 1:42 PM on October 5, 2011


[please keep this fairly narrowly focused and keep the sarcastic asides to yourself, thanks.]
posted by jessamyn at 2:07 PM on October 5, 2011


The 2A rulings set a precedent that allows people to challenge local laws, so the situation is totally different. Once people start challenging those laws, they will be struck down.

Although you probably won't see any changes in terms of gun violence, because gun crime is correlated very strongly with poverty (as is a lot of crime) and almost not at all with gun laws.

Either way, it looks like the "overturns 100 years" of law thing is just so much media panic. Nothing has been provided so far to shows the ruling did any such thing.
posted by luke1249 at 2:17 PM on October 5, 2011


I've looked at the Hasen pieces, and he doesn't mention anything about a century of law.
posted by luke1249 at 2:33 PM on October 5, 2011


The century of law claim is rhetorical. In its own way, it too is advertising for a political point of view, and I would suspect it is significantly less accurate than the book that Citizens United was pushing. Wildly overblown claims by the authors of dissents are injudicious, but sadly they are quite common -- they issue from judges and presidents with some frequency.
posted by Mr. Justice at 2:44 PM on October 5, 2011 [1 favorite]


You have to really lack familiarity with campaign finance law and indeed have at best a surface knowledge of American politics to miss how profoundly Citizens United changed the playing field. Elections are a totally different ball game than they were just two years ago, and Citizens United is the reason. Before CU there were lots of restrictions on independent expenditures, now there are none. The size of the Republican victory in the 2010 elections was a direct outcome of the CU case and the control of the House and Senate in 2012 will be significantly influenced (most likely in a conservative/Republican direction) by this decision as well.

I don't know where the OP got his information regarding the effect of the decision -- there are many, many more effects of CU than simply making a small change in the timing of expenditures. The permissible size and nature of expenditures is affected, making unlimited direct attacks on candidates possible.

I assume the "century of law" claim is a reference to the Tillman Act of 1907.
posted by zipadee at 9:22 PM on October 5, 2011


As for the claims about Citizens United changing the law:

The narrow issue actually decided by Citizens United was whether corporations could be treated differently than other groups or individuals with respect to certain independent expenditures made close to an election. The Court said no-- everybody agrees that these expenditures are protected speech when made by individuals, and there's no good reason for treating corporations differently. In doing so, the Court explicitly overruled two cases, the older one of which was 21 years old.

The broader issue arguably implicated by Citizens United is whether and when it is ever justified for a campaign-finance law to treat corporations differently than people. Some elements of the court's opinion might be taken to imply that corporations should never be treated differently than individual citizens, and if so, that would render the Tillman Act of 1907 unconstitutional. (The Tillman Act deals with direct contributions of cash by a corporation; campaign-finance law draws a big distinction between direct contributions and independent expenditures.) That's what Justice Stevens argued in his dissent, and that's what the century-of-law claim is a roundabout reference to. Note that the Court has not actually invalidated the Tillman Act, it's just that its logic might lead there.

So the fight about how to characterize Citizens United has to do with which of these two visions of the case you subscribe to. That, in turn, has to do with a lot of other things-- how much you tend to focus on the narrow technical holdings of a case vs. how much you focus on the broader principles implied therein; whether you think the Justices are acting in good faith, and what good faith would consist of; etc. But that's what the critics are getting at, and that's why the supporters say it isn't true. It depends on how you read a case, what you think is important about it, and what you think happens next.
posted by willbaude at 12:36 AM on October 6, 2011


Willbaude, thanks for the perspective.

It seems like the people arguing the CU was a bad ruling don't really have much in the way of evidence for that. Pace zipadee, the idea that the Republican takeover of the House in 2010 is a direct outcome of CU is wishful thinking, and looks a lot like the left's unending effort to delegitimize the right (i.e., the right can only ever win by somehow subverting the democratic process, the basic idea being that the vast majority (laughably 99% according to the Wall St. protesters) of people in the US are liberals, and if they could vote properly, the Republican party would wither and die).
posted by luke1249 at 7:45 AM on October 6, 2011


Luke, what was your purpose in asking this question? Did you want to actually find out what academics think about Citizens United, what the actual evidence is for the case having had a real-world effect, the specific background of the "100 year" claim, or just pontificate about your views?

Because I don't really see where you're getting your conclusion that "It seems like the people arguing the CU was a bad ruling don't really have much in the way of evidence for that." You've been provided with several links here to academics and other educated observers who believe that the case drastically changed election law, but you're still concluding that it's nothing but "wishful thinking." It seems to me that you asked this question in bad faith. Not what AskMe is for.
posted by yarly at 9:52 AM on October 6, 2011 [4 favorites]


Pace zipadee, the idea that the Republican takeover of the House in 2010 is a direct outcome of CU is wishful thinking, and looks a lot like the left's unending effort to delegitimize the right (i.e., the right can only ever win by somehow subverting the democratic process, the basic idea being that the vast majority (laughably 99% according to the Wall St. protesters) of people in the US are liberals, and if they could vote properly, the Republican party would wither and die).

Dude, you need to just stick this junk on a far right blog where people will want to hear it. I gave you two links that cited the numbers on the explosion in independent corporate funding directly supporting Republican candidates. That's not wishful thinking, that's cold hard fact. Everybody I know who works in campaigns deals with the fallout from Citizens United pretty much every day.
posted by zipadee at 10:27 AM on October 6, 2011


I'm not quite sure how to respond. Of course I asked in good faith. Yarly, apparently you didn't like the conclusion I drew. That's not my fault. The "overturned 100 years" thing is just smoke. CU might in the future overturn the 1907 case. It hasn't.

The discussion went a bit off topic, but there were voices who thought CU was a good ruling and voices that thought CU was a bad ruling. John Cohen presented facts and reasoning. You presented some links which didn't answer the question (they were just doom-and-gloom prognostications made right after the ruling), and you added commentary which amounted basically to an ad verecundiam argument, which I wasn't looking for.

Zipadee cited a HuffPo article that is kind of misleading, since it doesn't present super PAC spending numbers, but "non-disclosing group" spending numbers. That might be an interesting avenue of discussion, and I'll look into it, but the idea that the 2010 elections went to the right because of super PACs flies in the face of reality. First of all, Democrats outspent Republicans. Secondly, there were and are a lot of people genuinely angry at Obama. They don't need teevee ads to tell them to be angry. The Tea Party movement is every bit as genuine as the Occupy Wall St. protesters. It's as stupid for the right to try to delegitimize those protesters as it is for the left to do the same to the Tea Party.

So I don't know why you're getting so angry.
posted by luke1249 at 11:46 AM on October 6, 2011


Politifact has a good roundup on the idea of CU overruling 100 years of law.
posted by Sticherbeast at 12:11 PM on October 6, 2011


[This really needs to not be a place to have an argument or engage in political chat. Folks can provide info in a way that makes sense on Askme or skip the thread; luke1249, you really need to not use the thread as a place to roll out What You Think About Things. If the useful pointing-to-external-resources portion of this is spent already, that should be about it for the thread and folks can chat via email if that's their inclination.]
posted by cortex at 12:12 PM on October 6, 2011 [2 favorites]


Sticherbeast, thanks.

Cortex, my feelings exactly, although I wasn't the one doing what you said.
posted by luke1249 at 1:25 PM on October 6, 2011


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