This week, Hillary Clinton unveiled her proposals to reform campaign finance laws. Unsurprisingly, Clinton’s proposals would make it much more difficult to criticize, you guessed it, Hillary Clinton.
Accompanying the announcement is her new campaign video, which acknowledges the elephant in the room: Citizens United was a case about censoring a movie that criticized Hillary Clinton. But rather than this biasing her opinion on the case, the video argues that her connection to the case gives her insight because “she knows firsthand what it’s done to our democracy.”
Clinton has pledged to use overturning Citizens United as a litmus test for Supreme Court justices, and she also supports a constitutional amendment to overturn the decision.
This wouldn’t be the first time a politician pushed to censor criticism as a public service. In 1798, President John Adams signed the Alien and Sedition Acts, which made it a crime to “write, print, utter, or publish” anything that might bring “the government of the United States, or either house of the Congress of the United States, or the President of the United States into disrepute or to excite against them...the hatred of the good people of the United States.” Maybe we should just resuscitate that law and add the name “Hillary Clinton.”
According to her video, Citizens United was “a conservative organization that wanted to bring down Hillary Clinton’s candidacy because they didn’t like who she is, they don’t like what she stands for”--in other words, the quintessence of political speech protected by the First Amendment. Yet, because Hillary: The Movie was funded by a corporation--a nonprofit corporation founded to forward conservative causes--the movie and its accompanying advertisements ran afoul of the Bipartisan Campaign Reform Act. In short, the government was explicitly censoring political speech.
In Clinton’s words, according to the Associated Press: “I want to tell you, Citizens United was about me. Think how that makes me feel. A lot of people don't know that, but the backstory is eye-opening.”
Eye-opening, indeed. A small nonprofit that sought to make movies criticizing politicians runs headlong into a law that was partially intended to silence speech critical of politicians and candidates. As Senator John Edwards (D-NC) said during the floor debates over the Bipartisan Campaign Reform Act: “[people] turn on their televisions in the last 2 months before an election and see mostly hateful, negative, personal attack ads posing as issue ads. . . . Those are the ads we are trying to stop.”
Senator Jim Jeffords (I-VT) complained that he “had to face seeing ads on television which totally distort the facts and say terrible things. You watch a 20-percent lead keep going down[.]”
Senator John McCain (R-AZ) thought that the ads “are negative to the degree where all of our approval ratings sink to an all time low,” and that the ads “simply drive up an individual candidate’s negative polling numbers.” Senator Dick Durbin (D-IL) grumbled that the ads “[do] not help our image.”
These quotes demonstrate that censoring critical and “negative” political speech is often a proximate goal of campaign finance “reformers.” They also show that giving elected representatives the power to censor campaign speech will unleash self-serving and grotesque motivations to protect “20-percent lead[s].”
When it comes to letting representatives alter the process by which they get elected, we should heed the words of Nobel laureate James Buchanan: “Don’t let the fox guard the chicken coup.”
Yesterday, the website Reddit, which is aptly called “the front page of the Internet,” featured an interesting discussion on attempts to overturn Citizens United, the 2010 Supreme Court case that held that the First Amendment protects the right of corporations and unions to make independent expenditures in elections. A group of five people working to overturn the decision fielded questions from the community in a so-called “Ask Me Anything” (AMA) thread. Past AMAs have been created by a wide-range of famous and interesting people, including Jon Stewart and even Barack Obama.
The five advocates titled the thread “We’re Working on Overturning the Citizens United Supreme Court Decision – Ask Us Anything!” Fielding questions were Aquene Freechild from Public Citizen, Daniel Lee from Move to Amend, John Bonifaz from Free Speech for People, Lisa Graves from Center for Media and Democracy, and Zephyr Teachout former candidate for New York governor and associate professor of law at Fordham University.
At the beginning of the AMA they proclaimed:
January 21st is the 5th Anniversary of the disastrous Supreme Court Citizens United v. FEC decision that unleashed the floodgates of money from special interests.
Hundreds of groups across the country are working hard to overturn Citizens United. To raise awareness about all the progress that has happened behind the scenes in the past five years, we’ve organized a few people on the front lines to share the latest.
Surprisingly, at least to me, the AMA was a disaster. Reddit caters to younger people and, as such, it is generally quite left-wing. The Reddit “Politics” community, in particular, is known for having a substantial left-wing tilt. I had thought the community would rally around the advocates—pat them on the back, complain about the Koch brothers, and pontificate on how no “real” policy change can occur until “big money” is silenced.
Instead, the community not only asked excellent and difficult questions, but they clearly identified the fundamental problems with the advocates’ position.
The advocates didn’t help their cause by not answering many questions. This is a big Reddit no-no, a violation of “Reddiquette.” It is certainly a bad idea to create a thread called “Ask Me Anything” and then answer only a few questions, while ignoring the hard ones.
The top-rated comment (the comment with the most “upvotes” will be at the top) asked some particularly difficult questions. User SaroDarksbane asked:
The Citizens United case was about a non-profit organization that wanted to air an advertisement for a film they made that was critical of a politician and was told by the government that is was illegal for them to do so.
By overturning this decision, aren't you advocating that the government have the legal right to censor political speech?
The eventual Supreme Court decision was that censoring political speech (especially during an election) was against the first amendment. Why do you disagree with that opinion?
Are you worried that allowing government censorship of political speech could ever backfire against you or the causes you support, should the reins of power be handed to politicians who disagree with you?
For any political opinion you hold, how much money would a politician of the opposite opinion have to spend on advertisements to cause you to vote against your opinion at the polls?
The last question is quite interesting, and it went largely unanswered. Many advocates for increased campaign finance restrictions seem to think that the opinions of the “average person” (which does not include them, of course) are easily overcome with the brute force of money. (I’ve written more on this here.) Jonah from Public Citizen responded:
Billionaires and mega-corporations (and institutions that represent them like the U.S. Chamber of Commerce) spend a tremendous amount of money to research how people will respond to various messages and use this money to successfully influence the outcome of elections. They bring people to office who do not represent the interests of those who are electing them.
The first sentence seems little better than invoking a type of mind control. The second sentence is a bald admission that he and his organization are trying to censor speech in order to keep people from making bad decisions against their “interests,” which I'm sure are highly correlated with Jonah's own political positions. He adds that restricting campaign speech is important because “Truth is drowned out.” Although campaign finance restrictions are unquestionably about censorship, rarely have I seen such a straightforward admission of that fact. Apparently, some people and organizations should be silenced because if hoi polloi hear it they might be forced to vote against their "interests."
Another perceptive user, bbbjorkman, asked:
Can you please explain why you think "unleash[ing] the floodgates of money from special interests" is such a bad thing? Simply showing that more money is being spent on elections now than in the past doesn't, in and of itself, prove anything normative.
For every Koch or Karl Rove there's a Soros or AFL-CIO or Tom Steyer—why is trying to silence them better than, for instance, simply requiring full and fair disclosure?
Finally, I'm assuming you'd want an exception to your amendments/laws/regulations for corporations that publish newspapers and magazines. Can you please explain why The New York Times Company doesn't pose the same supposed risks to our democracy that, say, Crossroads GPS does (in your minds, at least)?
Those excellent questions also went unanswered.
Given the amount of bad press Citizens United has received, especially on Reddit in the past, it was incredibly enlivening to see the community galvanize such an effective response. It was also surprising to see the advocates give such inadequate answers. Perhaps, when you advocate censorship, it is difficult to answer such pointed questions.
For more on Citizens United, come to Cato next Wednesday, January 21, for a half-day event put on by the Center for Competitive Politics, “Citizens United v. FEC after Five Years.” A live stream will also be available. For more on campaign finance in general, check out episode two of “Free Thoughts," the podcast I co-host with Aaron Ross Powell.
Building on the excellent fisking of Newsroom by my colleague Caleb Brown and Reason's Scott Shackford, let me reiterate that Citizens United has nothing to do with any problems regarding how we regulate political campaigns, perceived or real.
Perceived: Campaign finance "reformers" think we'd be a lot better off if corporations, particularly foreign corporations, weren't able to fund candidates and parties. Of course, Citizens United didn't disturb the ban on that sort of thing, which has been in place since 1907.
Real: Independent political speech -- be it individual, corporate, union, advocacy group, neighborhood association, or informal group of friends -- is largely unregulated (though you do have to register SuperPACs and disclose donors, be they individuals or corporations) but candidates and campaigns bear onerous burdens regarding contribution limits, disclosure requirements (which scare off small donors rather than large bundlers), and arcane coordination rules. A Supreme Court ruling is indeed at fault for the bizarre and largely unworkable way in which our laws have developed in this areas, but it's not Citizens United. Instead, it's the 1976 baby-splitting opinion in Buckley v. Valeo, which saw the Court rewrite the Watergate-era Federal Election Campaign Act, creating a piece of legislation much different than the global reform Congress passed (sound familiar?).
I've written a law review article about all this called "Stephen Colbert Is Right to Lampoon Our Campaign Finance System (And So Can You!)," which will run in the University of St. Thomas (MN) Journal of Law & Public Policy this fall.
And Tuesday afternoon I'll be testifying to that effect to the Senate Judiciary Committee's Subcommittee on the Constitution (here's the link to the hearing site, where you'll be able to watch). Here's an excerpt from my written statement (which isn't online yet):
The underlying problem, however, is not the under-regulation of independent speech but the attempt to manage political speech in the first place. Political money is a moving target that, like water, will flow somewhere. If it’s not to candidates, it’s to parties, and if not there, then to independent groups or unincorporated individuals acting together. Because what the government does matters and people want to speak about the issues that concern them. To the extent that “money in politics” is a problem, the solution isn’t to try to reduce the money—that’s a utopian goal—but to reduce the scope of political activity the money tries to influence. Shrink the size of government and its intrusions in people’s lives and you’ll shrink the amount people will spend trying to get their piece of the pie or, more likely, trying to avert ruinous public policies.
. . . .
The solution is rather obvious: Liberalize rather than further restrict the campaign finance regime. Get rid of limits on contributions to candidates—by individuals, not corporations—and then have disclosures for those who donate some amount big enough for the interest in preventing the appearance of quid pro quo corruption to outweigh the potential for harassment. Then the big boys who want to be real players in the political market will have to put their reputations on the line, but not the average person donating a few hundred bucks—or even the lawyer donating $2,500—and being exposed to boycotts and vigilantes. Let the voters weigh what a donation from this or that plutocrat means to them, rather than—and I say this with all due respect—allowing incumbent politicians to write the rules to benefit themselves.
Curiously, there will be six witnesses taking the "get corporate (and maybe even all private) money out of politics" view as against one, me, for deregulation and freedom of speech. That seems a bit unfair; I'd think that the campaign-finance-reform zealots need at least a dozen people to stand up against my very simple "remove contribution caps but require disclosure for big players" argument. Should be fun.
In short, while there are (at least) 99 problems with how we manage elections, Citizens United ain't one.
If you watch HBO's "Newsroom," you may have seen Cato, IJ and others get a quick namedrop in relation to the Citizens United Supreme Court case. Actor Jeff Daniels misstates the holding of the case, claiming that Citizens United "allowed corporations to donate unlimited amounts of money to any political candidate without anyone knowing where the money was coming from."
But, you see, this just shows Aaron Sorkin's unwavering commitment to realism in his shows. Reporters regularly get the holding of Citizens United wrong. After all, if reporters were crystal clear that Citizens United cleared the way for all manner of groups to use "corporate treasury funds" to fund broad and overtly political statements about candidates, they would inevitably conclude that their own right to make those kinds of statements would be jeopardized by much of the campaign finance regulation on the books prior to Citizens United. And it's hard to demonize libertarians when they're fighting for the rights of everyone, including reporters and entertainers who work for subsidiaries of Time Warner (CNN, HBO), Viacom (CBS), Disney (ABC), Comcast (NBC, MSNBC), General Electric (NBC, MSNBC), News Corp. (FOX, Fox News), etc.
If you'd like to know more about the facts of Citizens United, watch this:
As to the claims about secrecy in political speech, Cato Institute senior fellow Nat Hentoff has a few thoughts on disclosure and the jurisprudence of Clarence Thomas.
Today, as I predicted six months ago, the Supreme Court summarily reversed the Montana Supreme Court’s attempt to nullify the controversial 2010 decision of Citizens United v. FEC. The Montana Supreme Court had essentially ruled that Citizens United is a decision based on facts rather than law—that is, that Montana’s situation of corporate corruption in elections was factually unique, thus exempting the state from compliance with Citizens United. In an admirable dissent, Justice James C. Nelson explained precisely where the court went wrong:
Unquestionably, Montana has its own unique history. No doubt Montana also has compelling interests in preserving the integrity of its electoral process and in encouraging the full participation of its electorate. And Montana may indeed be more vulnerable than other states to corporate domination of the political process. But the notion argued by the Attorney General and adopted by the Court—that these characteristics entitle Montana to a special “no peeing” zone in the First Amendment swimming pool—is simply untenable under Citizens United.
Admittedly, I have never had to write a more frustrating dissent. I agree, at least in principle, with much of the Court’s discussion and with the arguments of the Attorney General. More to the point, I thoroughly disagree with the Supreme Court’s decision in Citizens United. I agree, rather, with the eloquent and, in my view, better-reasoned dissent of Justice Stevens. As a result, I find myself in the distasteful position of having to defend the applicability of a controlling precedent with which I profoundly disagree.
That said, this case is ultimately not about my agreement or disagreement with the Attorney General or our satisfaction or dissatisfaction with the Citizens United decision. Whether we agree with the Supreme Court’s interpretation of the First Amendment is irrelevant. In accordance with our federal system of government, our obligations here are to acknowledge that the Supreme Court’s interpretation of the United States Constitution is, for better or for worse, binding on this Court and on the officers of this state, and to apply the law faithful to the Supreme Court’s ruling.
Unfortunately, the Supreme Court’s reliably liberal justices did not take the same admirable position as Justice Nelson. In a situation when they should have unanimously asserted the Supreme Court’s position as the final expositor the Constitution and chastised the Montana Supreme Court for its temerity, justices Kagan, Breyer, Sotomayor, and Ginsberg instead decided to re-visit their opposition to Citizens United. All four justices re-registered their dissent with Citizens United, but they did not go so far as to vote to re-hear the case. And given that only four votes are required to grant certiorari, re-hearing the case was an option available to them. It’s good they did not go this far. However, while I am a believer in registering principled dissents, this was not the time to do so. In addition to being constitutionally incorrect, overturning Citizens United after just two years on the books would have severely impaired the legitimacy of the Court.
This is what political judging looks like. While it has become de rigueur to refer to the five conservative justices as being mere pawns of their political opinions, such attacks are hardly ever leveled against the four reliable liberal justices. Here, however, they were driven by their political opinions rather than their duties as Supreme Court justices bound to ensure that the Constitution applies equally in every state.
My colleague John Samples has more here.
This blogpost was co-authored by Cato legal associate Kathleen Hunker.
Any prizefighter worth betting on knows that the worst thing you can do in a tough match is succumb to frustration. House Democrats should heed that wisdom. Frustrated by the Constitution’s interference in their efforts to muzzle certain kinds of political speech, Rep. Jim McGovern (D-MA), House Minority Leader Nancy Pelosi (D-CA), and 27 other congressmen have proposed a constitutional amendment that would overturn the Supreme Court’s holding in Citizens United.
Unfortunately, in their haste to deliver a blow against evil corporations, these lawmakers have exposed the Constitution’s flank in a way that would lead to debilitating blows against individual civil rights were this measure ever adopted.
The proposed change, absurdly titled the People’s Rights Amendment, asserts that the Constitution protects only the rights of “natural persons” and that Congress retains the ability to subject “all corporate entities” to any regulation or restriction Congress deems “reasonable.” Its supporters contend that the Amendment is necessary to reduce the role of money in politics and ensure that elections represent the voice of the people. As several commentators have already observed, however, the amendment does far more than subject corporations to new campaign finance regulations.
Although the People's Rights Amendment says that it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people,” it radically contracts those and other rights entrenched in America’s political tradition.
George Will's latest column explains this very point. In addition to denying “natural persons” the right to associate and speak in concert,
McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.
Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights.
Instead of removing corporate money -- which goes much more to lobbyists (petitioning for redress of grievances) than electioneering anyway -- the amendment grants Congress the power to strip think tanks, advocacy groups, charities, newspapers, political parties, and even a candidate’s campaign of the right to criticize and oppose the government. Any political speech more complex than standing on a park bench at an Occupy rally becomes subject to the whims of federal bureaucrats. Even books don't escape the amendment’s long reach, as the government lawyer admitted would be the case under the pre-Citizens United law that the amendment hopes to reinstate.
McGovern and Pelosi haven’t answered how the People’s Rights Amendment ensures that elections represent the voice of the people when it takes away the very venues on which the people stand to have their voice heard.
George Will makes a second foreboding observation. He notes that, by stripping corporations of all constitutional protections, the amendment would empower the government to do much more than proscribe speech:
[G]overnment, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.
For more on these dangers, see here and here. Of course corporations aren't human beings, but that brilliant insight is legally irrelevant. Corporations are formed by individuals as a means of exercising their constitutionally protected rights, and those individuals do not lose the protection of the Constitution by choosing to exercise their right to associate and pool their resources.
Thus, while a corporation does not enjoy the full breadth of constitutional rights (i.e., sexual privacy), it warrants whatever degree of protection is necessary for its members to exist as free and rational beings. These rights certainly extend to the ability to publicize and support political initiatives.
Before the supporters of People’s Rights Amendment make that massive lunge against what they view as constitutional frustrations, they should take a step back and reassess whether the satisfaction they derive from sticking it to corporations is worth the potential collapse of our political system’s commitment to a free society.
Yesterday the Supreme Court heard argument in Kiobel v. Royal Dutch Petroleum, the case (which I've discussed before and in which Cato filed a brief) that asks whether, under the Alien Tort Statute, the “law of nations” can be applied against an entity that is not a natural person: a corporation. As the majority of the Court seemed to think, and as I wrote in the New York Times online, the answer is no because Congress never gave U.S. courts the power to entertain lawsuits alleging corporate malfeasance involving foreign actors abroad.
It seems like a discrete enough issue -- does this statute contemplate corporate liability? -- one that international law junkies and the "human rights" establishment are passionate about, but not one that should have much broader purchase. Yet the blogosphere, not least the response to my Times piece, is up in arms about organizations like Cato saying that "corporations are people" when it gets them political speech rights (Citizens United) but not when it subjects them to liability for their dastardly deeds (Kiobel).
But to make this charge -- whether labeled shilling for corporations or just plain hypocrisy -- is to misunderstand both Citizens United and Kiobel.
Before explaining why, let me just reiterate that I agree with the keen point that corporations are not human beings. But that brilliant observation is legally irrelevant. Corporations are formed by individuals as a means of exercising their constitutionally protected rights. Corporate personhood is simply a convenient legal fiction that we use to enable that rights-pooling for all sorts of purposes. If using the word "person" in relation to an inanimate entity is confusing or offensive, you could try calling it something else (but then nobody you're talking to would understand you, so we're stuck with the word, for better or worse). In any event, as I explain in my recent law review article -- "So What If Corporations Aren't People?" -- none of this changes how the law treats corporations.
Now then, I'm not saying that corporate personhood is operative for purposes of political speech but not for purposes of liability for malfeasance. Instead, I'm clarifying two areas of law as they relate to corporate actors. First, the First Amendment guarantees that rights-bearing individuals don't forfeit their rights (to speak about politics or anything else) when they associate in groups, whether in corporate form or otherwise. Second, the Alien Tort Statute -- a peculiar law by which Congress gave federal courts jurisdiction over "law of nations" violations alleged by foreigners against other foreigners -- doesn’t recognize corporations as a type of party that can in that manner be haled into our courts. That is so because the “law of nations” doesn’t extend to corporate actions (for reasons explained in our brief and elsewhere that I won't repeat here).
Kiobel has nothing to do with corporate liability in general -- e.g., liability for manufacturing defective products, dumping chemicals, etc., in violation of U.S. or even foreign law -- but rather only concerns corporate liability for human rights abuses and other violations of the "law of nations" by foreign corporations in foreign countries.
The law can surely be "a ass," but you have to understand what law you're discussing to understand what type of ass it might be.