Citizens United v. FEC in the Corporate Blawgosphere

Jonathan Adler summarizes the case:

The Court held 5–4 that restrictions on independent corporate expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC, and it upheld the disclosure requirements 8–1 (Thomas dissenting). Justice Kennedy explained that the Court was overruling some of its prior decisions because it was not possible to rule in favor of the petitioners on narrower grounds without chilling protected political speech. According to Justice Kennedy, the Court is re-embracing the principle that a speaker’s corporate identity is not a sufficient basis for suppressing political speech, as held in pre–Austin cases. It would appear this holding applies equally to unions. While disclosure requirements may also burden political speech, Justice Kennedy explained, such requirements may be justified by the government’s interest in ensuring that the electorate has information about spending on elections and campaigns, and the specific disclosure requirements at issue are constitutional as-applied to Citizens United. The opinion also includes a substantial discussion of stare decisis, and why such considerations counseled overturning prior precedents.

Tom Smith:

I have long thought the idea that just because people decided to speak about politics through a juridical entity as opposed to say just a plain old club, that they could not spend much money to actually reach people doing so, to be utterly baffling and unpersuasive, and probably just a product of dusty progressive thinking of the sort that animated the Yale Law Journal in the 1930's.  Alas, in faculty lounges across the country today, jowly faces of men in tweed jackets and too tight button downs will be inflating like infurated toads, gasping Corporations!  Other people's money!  Incorporation is a privilege!  Wise ethicists counsel us not to enjoy this too much.  Much wailing and gnashing of teeth too is to be anticipated no doubt from younger persons at various lefty blogs, and I sympathize. It takes a lot of legal and political theory to explain why in the larger and profoundly understood scheme of things a bunch of people who have filed some papers cannot spend their money to talk politics the way a bunch of people who have not filed some papers can, and it would seem these ideas have not sold to our nine person speech planning panel.  

There is hardly anything more irritating than the political speech of persons, natural or artificial, with whom one disagrees.  In my own defense, however, I will note it does not occur to me that I should be able to use the power of the state to shut these irritants up, even if they are, oooh scary, hiss hiss, Big Corporations.  Or as was the case in this case, a very little one, laws to regulate speech being so notoriously hard to get right, even when they are wrong.  Business corporations will doubtless use their influence to lobby for candidates who are most likely to grant them monopoly privileges, regulate their competitors, and subsidize their inputs, as they do now, only perhaps even more so. Some will no doubt see the tractors of ADM scything down wheat fields, when what ought to shown are them scything down tax dollars, and think, oh, neat tractors, I better vote for that guy.  If you think there are no voters this stupid, you are not buying enough lottery tickets.  The marketplace of ideas can be a pretty sordid place and if you don't believe me, just try googling random words and see how long it takes you to find a sex practice you have never heard of before.  Still, better that than than having a bunch of political hacks decide what is and is not permitted into our brains.

Matt Bodie:

I predict Citizens United will lead to a new round of shareholder proposals designed to limit corporate political spending.  Shareholders -- particularly institutional shareholders -- will want to limit the money that flows out through theoretically "non-business-related" expenses. 

CE Petit:

Corporations are not "citizens" for purposes of voting (except, perhaps, in Chicago... and the reality of modern campaign finance). Neither, for that matter, are unions. Instead, corporations and unions represent a broad delegation of authority by investors to managers (capital in corporations, labor in unions) who, in turn, are supposed to represent the limited best interests of that delegation. Whether one accepts the "nexus of contracts" model of corporations or uses some other model (and similarly for unions), the key point is that it is a delegation related to a limited interest; and in that sense, the real problem is not the "forced speech" meme that dominates the 180ish pages of opinions in this matter, but the Rawlsian problem of the initial position. In this instance, corporations (and unions) have a preferred initial position, and Citizens United fails to acknowledge that governmental preference for an initial position constitutes an intensely ideological prejudgment... which, in turn, is inconsistent with the values of free speech both explicitly and implicitly at the core of the First Amendment.

I do not claim that this means that one must disfavor corporate/union speech; I only deny that mere expenditure constitutes expressive speech, when mere expenditure (and the accumulation of resources to engage in mere expenditure) has been granted a favored initial position. And, in turn, that's why the artificial distinction requiring use of PACs and other artificial devices to separate expenditures on political speech from general treasuries (of artificial "persons") makes a great deal more sense than does the Court's action this morning. It's not a perfect solution, but it is the least-intrusive means... unless, of course, one denies that the favored initial position has even the capability of distorting the marketplace of ideas. In short, unless one would apply neoclassical microeconomics to a postmodern macroeconomic context without any regard for the problems created by monopoly and oligopoly pricing. To paraphrase Ursula Le Guin, free speech does not consist of handing one party a bullhorn and open venue in a public park while simultaneously allowing a party with inconsistent views to hold forth in a public lavatory near that park... without a bullhorn.