Citizens United v. FEC: The Moral High Road to Corporate Dominance

“It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin.”  J. Stevens, Citizens United v. FEC.

No. Judicial restraint would be refusing to hear a case on the grounds that the arguments presented were unsound and there is no clear and compelling argument presented for judicial intervention in the legislative process.


Last week SCOTUS handed down Citizens United v. Federal Election Commission. Long LONG story short, this case involved a challenge to the Bipartisan Campaign Reform Act of 2002 (you may know this as the McCain/Feingold Campaign Reform Act. For the sake of brevity, I will refer to it hereinafter as BCRA), specifically to U. S. C. §441b, which prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.

To put this in perspective, SCOTUS has previously determined that restrictions on corporate spending to support or oppose political candidates were kosher, Austin v. Michigan Chamber Of Commerce, 494 U.S. 652 (1990) and upheld numerous provisions of BCRA in McConnell v. Federal Election Commission, No. 02-1674 (Decided December 10, 2003), including the provisions that limited spending by corporations and unions.

In January 2008 Citizens United, a nonprofit corporation, released a “documentary” bashing Hillary Clinton.  Citizens United’s intent was to run the video on cable television via video-on-demand 30 days prior to the primaries. Citizens United also put out tv ads promoting the documentary on regular and cable television. Citizens United then filed a declaratory judgment action (effectively an action that asks a Court to determine the rights of a plaintiff, sometimes indistinguishable from an improper request for an advisory opinion) and requested injunctive relief proclaiming that it was not subject to the restraints of §441b. In its claims for relief, Citizens United made a number of arguments pertaining to a narrow construction of the statute in addition to the generic claims that the statute itself was broadly unconstitutional. NB:  this is a standard approach – one ALWAYS sets up a blanket assertion of fundamental unconstitutionality to balance out the more narrow – and realistic – unconstitutional as applied arguments.

SCOTUS, in a jaw-dropping example of sua sponte policy making by the conservative arbiters of judicial restraint, ignored all the narrowly drawn arguments and determined that this case could only be decided on large-picture 1st Amendment grounds, coyly found that Citizens United had not waived any such arguments, and then proceeded to overrule long-standing precedent and determine that corporations have the right to engage in unlimited and unfettered political spending in the guise of free speech.

To say this decision came as a shock is an understatement. Most people thought this was just a quirk of a case, and one that would be decided on very narrow grounds thus having scant little impact on future political speech activity. Not so much. For those of you who like to torture yourselves, you may read the opinion here in its 180+ page glory, including the very eloquent, if stunned and horrified, dissent penned by Stevens. For those of you that don’t feel like engaging in such an endeavor would be a good use of your time – or may be likely to increase your rage level beyond the range of acceptable – I will give you a quick and dirty summary of WHY the conservative wing of the Supreme Court, the so-called bastion of judicial deference, decided that it had to go all judicial activist on the collective ass of the citizenry. Bottom line? Because it is *GOOD* for us.


A.  Support of Candidate A and Attacks on Candidate A’s Opponents Are Two Legally Distinct Activities.

“[B]y definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” In other words, the majority insists that there is a meaningful and substantive difference between giving a bazillion dollars to Candidate A to get him/her elected and spending a bazillion dollars to get Candidate A’s opponent defeated. First, if we were a multi-party country, this argument might actually have some (very little) merit. However, as we are inarguably a two-party system, money spent to defeat Candidate B is inherently money spent to elect Candidate A.

Think of it this way:  Leno want the Tonight Show back from Conan.  Wal-Mart, being generally evil, wants Leno to get the Tonight Show. Under the Citizens United theory, Wal-Mart cannot give Leno more than $2,400 to assist him in his jackassery.  However, Wal-Mart can spend unlimited amounts of money to get Conan to leave.  What, praytell, is the substantive distinction here? Is SCOTUS trying to pretend that tanking Conan doesn’t necessarily promote Leno? Or, and this is my thought, is SCOTUS simply being difficult and insinuating that Congress set up this false distinction, so they will have to live with it?

Either way, I cry bullshit on this line of reasoning.

B.  There is No Principled Way to Distinguish Between “Media” Corporations and “Other” Corporations.

Basically, EVERY argument of principles/moral/philosophy/religion/politics boils down to this simple diametric:  ‘slippery slope’ v. ‘de minimus.’  In other words, unspeakable horrors will/may result v. you’re making a mountain out of a molehill.

Here the majority engages in the long-favored rhetoric of those adhering to an unprincipled argument – insist, instead, that the other approach would result in greater lack of principles down the road. Bait and switch – NICE! What the majority “fears” on this issue is that the provisions of BCRA at issue, if left unmolested, would prohibit “…[i]nternet sources, such as blogs and social networking Web sites, …[from] provid[ing] citizens with significant information about political candidates and issues” as the language of section 441b “…would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds.”  [NB: As Steven’s dissent rightly points out at fn 31, these provisions are expressly inapplicable to print media; so unless your blog is spoken word, the majority’s alarmist potentials do not apply.]

The majority further insists that under the current law, Congress could theoretically ban showings of Mr. Smith Goes to Washington. Because “[a]fter all, it, like Hillary, was speech funded by a corporation that was critical of Members of Congress. Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force.”

Really? So now Congress, in addition to attempting to limit campaign contributions, is also necessarily attempting to limit obviously protected free speech?

Come on

C.  Not Allowing Corporations Free Rein To “Speak” Is an Infringement on OUR First Amendment Rights.

Warning – this may nauseate you.

The majority additionally asserts that their decision to grant the full unfettered political speech rights of a U.S. human citizen to corporations is to protect US – the U.S. citizens.

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.  This is unlawful. The First Amendment confirms the freedom to think for ourselves.

So yes, restrictions on a corporation’s ability to spend a kabillion dollars to get its favored candidate elected infringes on our 1st Amendment rights to hear them “talk.”  And why does this suck for us? Because, apparently, corporations are inherently good and all-knowing (ummm…does this mean they are God?). The majority gives the following as ‘support’ for its rape-stand of an argument:

The Government has “muffle[d] the voices that best represent the most significant segments of the economy.”  McConnell, supra, at 257–258 (opinion of SCALIA, J.).

And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result).

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.”  The Federalist No. 10, p. 130 (B.Wright ed. 1961) (J. Madison).

Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false. The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public.

D.  The Dissent’s Concerns Are De Minimus Because Corporations Can Spend to Influence Already

Just in case, or perhaps it is their usual response to liberal slippery slope arguments, the majority observes that its actions are really not that big of a deal and will likely not result in some sort of Atwoodian policorporodystopia because corporations already have the ability to buy their candidate.

“Even if §441b’s expenditure ban were constitutional, wealthy corporations could still lobby elected officials, although smaller corporations may not have the resources to do so. And wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures.”

But never fear, actual living breathing human people, for SCOTUS assures us that “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”


So, what does this opinion mean? And what the hell do we do?

Well, it means, quite simply, that SCOTUS has greatly expanded the constitutional rights of a corporate “person.”  So now, in addition to simple and logical “rights” like ability to bring or defend a judicial action, a corporation now enjoys rights that seem necessarily tied to human existence and experience.

And yes, it does open the door for rampant corruption. Or, if you prefer, takes what was a very open, regulated, and transparent “window” and just gives the whole damn building to Wal-Mart. And yes, that may well be histrionic, but it simply illustrates my point that ALL things are either a slippery slope or de minimus. And when it comes to corporate involvement in elections, yes, I tend to fall on the slippery slope side.

Because a corporation simply is NOT a U.S. Citizen in the same way that you or me or my child or Bill Gates or my odd-bird neighbor is a U.S. Citizen. A corporation does NOT in any way whatsoever have the same interests at stake in a political election – its interests are SOLELY economic. A corporation cannot get laid off, get sent to war, go to prison, get married, have a family, get an education, go on welfare, get a divorce, retire, collect social security, be born or die.

And it is utterly offensive to everything on which this country was founded to suggest that a corporation is fundamentally ‘the same’ as a human U.S. citizen.

So, if you feel the same way, start contacting ALL your elected officials NOW and insist that they get on the ball with a Constitutional Amendment. Check here or here for more information. And check out the video in my previous post on this matter for more information.


  1. Laci The Dog said,

    January 24, 2010 at 3:53 pm

    “conservative arbiters of judicial restraint” is that like your use of penumbra?

    I have a friend who works for one of the networks and I am continuously complaining about the interminable elections in the US (where Canada and the UK have limted amounts of time for actual electioneering, but I am not going to debate that point given recent coverage of the upcoming UK elections). He pointed out it’s all about the money.

    We are already seeing our rights being rewritten by an infamous case that was orchestrated by a special interest group, the Cato Institute. The small minded cheer because it says things in way that confuses their tiny minds. they don’t have the critical thinking skills to realise that they have been had.

    As I point out, there is a reason that the right wants to cut public funding for NPR and other public media outlets. This is because they can manipulate the news through the camouflaged commercials called underwriting. Business funding of the media controls information. Control of information helps brainwash the public.

    Now, they control the election process.

    As I said at the brain police blog:
    “I wish we could find palpable proof of corruption in the US system. I have to believe that Scalia and the other four clowns are bought and paid for by special interests, as opposed to working for the public interest (cases above as part of my evidence).”

    Someting is going down in the USA and I don’t like it.

    It’s too easy to use wedge issues to divert the attention of the electorate from the real issues.

    I would add to that, and they are too dumb to realise they are being manipulated.

  2. southern female lawyer said,

    January 24, 2010 at 9:29 pm

    Yeah Laci – this decision pretty much blew me away. I am all about the presumption of regularity — mainly because as an officer of the court I have to be, but also because I feel better doing my job under the belief that our judges/justices are truly impartial.

    However, I often think that the “Federalist” judges and justices are shrewd opportunists rather than corruptible pawns. There is a history of conservative appointees going left. Proclaiming yourself as an absolute “federalist” carries the implicit promise that you will *never* skew left. Which isn’t to say that the federalists don’t believe what they espouse. In fact, I am sure they do. And equally sure that they believe it is the *right* approach to their Marbury duties.

    I have indicated previously that I feel very strongly that ALL judges and justices should have an articulable judicial philosophy – even if it is simply ‘I decide all matters on a case-by-case method.’ I think the problem with the federalist approach is that their judicial philosophy is more often used in an offensive manner rather than a defensive manner.

    For example, the ‘doctrine’ of judicial deference. After Marbury, Congress (very reasonably) was concerned that it could never equal (much less surpass) the power of the judiciary. The Supreme Court then, over the course of time, articulated the judicial deference doctrine, perhaps as a means of job stability or simply because a certain amount of deference is necessary to balance the three branches. However, this deference, as a court-created limit on power, is necessarily trumped by the judiciary’s constitutional duties.

    The federalists all too often use judicial deference as a means to effectively abstain from opining AND as a means to denigrate or cast doubt on a more liberal majority opinion. The problem is, after decades of refusing to rule on the constitutionality of certain laws alleged to violated the constitution, it is contrary to their own imposed rules to then sua sponte invalidate a law as facially unconstitutional when there were any number of narrow ways the decision could have been rendered. Or the appeal could have simply been declined.

    I really really dislike high-minded hypocrisy.

    I like it even less when the Courts act like lawyers instead of judges and justices. Their duty is to neutrally decide matters and they do so as public servants. My duty is to do what my client wants (within limits) because my client is paying me to act as a special and specific advocate for its interests.

    And, overwhelmingly, I think this is how the system works. However, when a judge or justice acts in a manner so very contrary to their own self-proclaimed judicial mandate, it looks very much like they are acting as lawyers rather than judges.

  3. Laci the Dog said,

    January 25, 2010 at 1:18 pm

    I heard comments similar to these in the other case (the one the Cato Institute orchestrated): it is contrary to their own imposed rules to then sua sponte invalidate a law as facially unconstitutional when there were any number of narrow ways the decision could have been rendered. Or the appeal could have simply been declined.

    There was another alternative, the case could have been remanded for further investigation, which the DC bar journal mentioned about the other case (not mentioning it to keep single issue types away).

    Anyway, I am having a problem with the stink test here. Will there be more stories such as this one in the future?

  4. Sam said,

    January 26, 2010 at 6:30 am

    I have the impression that the court is saying this: that the views of the corporations represent the views of the people in them, therefore silencing the corporations = silencing the views of the people in the corporations. Some questions arise from this.

    1. Don’t the people in the corporations already have the right to express their views as individuals?

    2. If corporations are allowed to express their “views,” doesn’t that mean that the people in them are heard in two different fashions? Both as individuals and as part of corporations?

    3. Doesn’t (2) place people who aren’t in corporations at a disadvantage? In other words, isn’t the speech of non-corporation people being suppressed relative to those in corporations?

  5. January 26, 2010 at 8:40 am

    We all exercise a variety of voices in our political speech. I speak as a member of, for example, even as I have my own individual voice.

    For me the issue is the construction from thin air of a new type of very powerful “citizen.” Unfortunately, the First Amendment language differs from that of the Second, protecting a general free speech right, instead of protecting “the people” from infringement of their right to speak.

    I fear this genie may be difficult to return to the bottle. Still, motivated citizens using new tools for social mobilization have a chance to win a fight against corporate money.

    Indeed, we may find that open, heavy, corporate support for a particular candidate may have the unintended consequence of mobilizing opponents. I would advise any candidate who hired me to use this to distinguish himself: “vote for me, or vote for Exxon.”

  6. southern female lawyer said,

    January 26, 2010 at 10:32 am

    Stan makes an excellent point. One of the things that is most troubling about this decision is that it protects the 1st Am. rights of the corporate “person” to the detriment of the actual people. Unfortunately, unlike the reciprocal functioning of the two religion clauses (freedom to and protection from), there is no such ‘protection from’ aspect to the free speech right.

    In allowing corporations the unfettered right to engage in political speech, the Citizens United decision gives corporations an additional right to purchase an audience and effectively drown out the free speech of less moneyed individuals.

  7. Dusty said,

    January 27, 2010 at 2:32 pm

    What, praytell, is the substantive distinction here? That is my biggest question to those five fucking assholes.

    You broke this ruling down for us nimrods outside the legal community..and I really thank you for it. Saw you at TenGrains blog and I am quite glad i clicked the link. 😉

  8. southern female lawyer said,

    January 27, 2010 at 2:40 pm

    Thanks Dusty and welcome aboard! Love yer blog, by the way. Esp the swearings and whatnot, as I have been accused a time or two of being a ‘common gutterwhore’ on account of my affection/propensity for cussin’. Is what it is. Heh.

  9. Dusty said,

    January 27, 2010 at 3:11 pm

    Swearing is not optional for me, and btw..anyone calls me a bitch in the negative ..I thank them… then I delete their worthless comment 😉

  10. southern female lawyer said,

    February 2, 2010 at 10:15 am

    I like the comment about how “business groups” were expected to fund the whole thing. It bothers me that even appointed judiciary are still, nonetheless, subjected to gross expenditures and a media campaign. I very strongly believe that all judges – or, at the very least, all appellate level judges – should be appointed, not elected. I have lived in elected states and appointed states – and hybrid states. Oftentimes local lawyers run the campaigns.

    In jurisdictions that have appointments, there is a lengthy and mostly confidential vetting process. And obviously executives will appoint judges who align with their own political leanings. But at least they are looking very closely at education and experience. Your average non-lawyer will be more impressed by a name they recognize with a JD from that State’s law school. They could care less about academics and don’t even want to know what law review is.

    Yes, when it comes to the law I am a snob in that I think that it truly does take a panel of experts to determine the substantive worth of a potential jurist.

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