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MSNBC Live, the SOTU, and the Supreme Court

I was on MSNBC Live this afternoon (clip here) discussing the president's State of the Union reference to Citizens United. As is typical for such a forum, the brief discussion focused less on the substance of the Supreme Court's decision and more on the drama of the situation: the president's highly unusual step of calling out the justices in front of him for a specific recent ruling, and Justice Alito's equally unusual reaction to that presidential reference (see Walter's earlier post here).

On the substance, since my time to comment was fairly limited, and I've yet to opine publicly on the decision, I want to clarify a few things about my thoughts:

  1. As somewhat a free speech absolutist -- who interned and clerked for the original counsel in Buckley v. Valeo, Ralph Winter -- I find the holding of the case unexceptional. Indeed, the notion that elected representatives could block the publication of a book or movie critical of an elected representative close to an election -- which the provision in question was specifically being applied to do -- seems to be in obvious tension with the First Amendment. The First Amendment protects both speech and association, and it would seem to me peculiar indeed to protect speech from individuals (Bill Gates or George Soros or Mike Bloomberg can spend as much money as they want to disseminate their political opinions) but not from associations of individuals (e.g., me, along with 25 of my friends).
  2. The silly assertion that "money is not speech" -- heard all too often in these debates -- is fatuous. Of course, money isn't speech -- but it clearly enables speech. The free exercise of religion and the right to an abortion wouldn't mean much if the government could forbid us from donating to our churches or synagogues, or spending money to pay for abortions.
  3. The proposition that "corporations are not the same as individual people" is also a truism, but one that means little for these purposes, either. Most of us who work for corporations -- or buy our telephone and internet access from corporations -- would shudder to think that the government could listen to or watch us without regard to the Fourth Amendment. Not a single member of the Court disputed that corporations are entitled to some First Amendment protection.
  4. The Founders may or may not have been fond of corporations -- Stevens and Scalia disagree somewhat on the facts here -- but the Founders' views on corporations don't have much bearing on the applicability of the First Amendment to corporations. As I suggested on MSNBC, if the First Amendment doesn't protect corporate speech, it doesn't protect the corporate press, either; I see little reason why the First Amendment would protect the ability of a large, diversified corporation like the General Electric Company to opine forcefully on a political candidate, but not protect speech by other corporations. And as much as I may disagree with many of Keith Olbermann's opinions, it would seem to me that his right to take down Scott Brown over the airwaves is precisely what the First Amendment is designed to protect. Justice Stevens seems to argue that the "freedom of the press" is a limited constitutional carve out for corporations, but there's nothing in the text or history to suggest that this speech-press distinction on the applicability of the First Amendment to corporations is more than Stevens's own fancy. (See this analysis by First Amendment scholar Eugene Volokh, which Walter linked here.)
  5. Notwithstanding the foregoing analysis, I do tend to agree with Stuart Taylor that the Court might helpfully have avoided the immediate controversy by taking a smaller bite at the apple. Chief Justice Roberts was quite right to note that there's no justification for using a legally dubious rationale to avoid the broader constitutional question. Still, it seems to me that the Court could have limited its holding to non-profit advocacy organizations that get some limited support from for-profit corporations, which would clearly encompass the facts of Citizens United. Much as the Court expressly declined to opine on the applicability of its holding to foreign companies and individuals, I don't see why the Court couldn't have left the question of independent expenditures from for-profit corporations for another day. As the Chief Justice has noted in other contexts, there's much to be said for such an Alex-Bickel-style gradualism in constitutional lawmaking. (All that said, it is a bit odd for Justice Stevens, in the election-law context, to characterize the majority as a bunch of judicial activists running roughshod over precedents with little regard for stare decisis. Only four years ago, Stevens supported jettisoning the central holding of the seminal 1976 campaign-finance precedent, Buckley v. Valeo, and allowing the government to restrict individuals' right to spend their own money to express their political views in campaigns -- a pretty radical step, indeed.)
  6. Finally, although the Court's role in First Amendment analysis is not to judge the policy implications of its decisions, I do think some voices reacting against the decision are overly histrionic. Corporations and unions already play a forceful role in the political process, and bigger corporations -- as the dissent argued -- already can speak through their political action committees. Moreover, most corporations ultimately don't want to alienate their customers, which will constrain them in buying ad time to take down political candidates; as Michael Jordan noted in declining to get involved in the 1990 Senate race between Harvey Gantt and Jesse Helms, Republicans and Democrats both buy shoes. (For a fuller discussion, see Larry Ribstein's article, Corporate Political Speech, 49 Wash. & Lee L. Rev. 109, 147-50 (1992), summarized here.)



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.