Citizens United vs Federal Election Commission

Well, predictably the political world is up in arms over the Supreme Court’s surprisingly wide ranging 5-4 vote saying that restricting corporate contributions to campaigns is a violation of the First Amendment.  Keith Olbermann on his show referred to it as the Dred Scott of our time.  Overall, this seems like a bit of a stretch.  First, some background.  Citizens United is a nonprofit dedicated to some sort of flimflam, and they produced some snuff propaganda film about Hillary Clinton.  The Federal Election Commission basically banned its airing on the basis of it being intended solely as an attack on a candidate – undue corporate influence of the political process.  And so up the chain of justice they went.  The 5-4 vote itself was not a surprise.  The usual Scalia-Roberts-Thomas-Alito block voted in favor of the Citizens United.  The usual Ginsburg-Breyer bloc voted in favor of the FEC.  Sotomayor, new but kind of all over the place in her past rulings, joined the Breyer factions, and that left Stevens and Kennedy as the main guys.  Kennedy has been against these sorts of restrictions for years, as Jonathan Turley points out:

The result is seismic for opening up elections to corporate spending. It is also a case of Justice Kennedy finally achieving a majority after voting against these limitations in 1990. While Justice Sandra Day O’Connor later changed her position to uphold campaign financing, Kennedy has remained firm that such limits run counter to the first amendment. He believes that public policy can be achieved through transparency provisions: “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”

The opinions offer strikingly different views of the First Amendment with Stevens writing: “The basic premise underlying the court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity’ as a corporation.” While that glittering generality has rhetorical appeal, it is not a correct statement of the law.”

What is interesting about the criticism of the ruling is that most of what I have seen comes from the CONSEQUENCES of the ruling.  It’s not that corporations have no more limits to flush elections with cash, it is that the Republicans have a better mechanism with it.  Nothing prevents FOX from flooding FOX News with more propaganda, but nothing stops George Soros either.  The ruling is very close – but not the partisan hackery that it seems.  This was legitimately difficult – and with the establishment of corporate personhood in 1886 (in the most weird of ways), I am not sure the Court’s ruling can be called immoral. (it can be challenged intellectually, but I am too dumb to participate in that debate)

Really the ruling is not the end of the world – as long as disclosure laws with teeth are in place.  Really this ruling would be quite benign if we had more than the 1.3 or so political parties we do have.  Let’s say we had 10 political parties.  You would think some of the ten would refuse KBR’s money.  That would be a differentiator!  But now with so little to differentiate the parties (despite the paradoxical mega partisanship), interests can flood both parties equally and corrupt them further.  There are concerns about foreign interests, but could Joe Lieberman really be any more in the bag for Iraq than he already is?  Ultimately this is a tough civil liberties ruling – and restraint with the First Amendment is always best.

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