Complicated Thoughts on Citizens United

At Netroots Nation last week, I attended a panel on Citizens United, the infamous case in which the Supreme Court tossed aside decades of campaign finance laws and ruled that corporations had the right to spend unlimited amounts of money to influence elections. This gives them an incalculably greater amount of power than before, and not just because corporations can spend in total secrecy, without disclosing the amounts or even the fact of their involvement to the public or even to their own shareholders. Worse, they can potentially swing votes without actually spending a dime, because the mere threat of a flood of anonymous attack ads is a powerful incentive for officeholders to fall into line (as the three U.S. senators on the NN panel pointed out).

Citizens United was based on five conservative justices’ reasoning that corporations are the legal equivalent of people and should have the same constitutional free-speech rights. Obviously, I think it’s absurd to equate the two. Corporations don’t die of old age and can hold property in perpetuity; they can’t be imprisoned if they commit a crime; they can wipe out legal obligations in all kinds of complicated ways that aren’t available to human beings. If corporations don’t have the legal and moral responsibilities of people, then neither should they have the rights of people.

It strikes me as basic common sense that corporations and other artificial entities are legal persons only for a few specific purposes, such as the ability to make contracts or to sue or be sued. In all other respects, they’re not people and their actions can rightfully be circumscribed by the law. Yet for all that, I’m not wholly convinced that Citizens United was wrongly decided on the merits. If I explain why, perhaps someone can point out if there’s a flaw in my thinking.

The problem I have is, if we prohibit political involvement by corporations, wouldn’t that rule also sweep up non-profit groups that are formed by citizens specifically to advocate in politics? I have a gut feeling that it’s wrong for Exxon or Unilever to run ads in political campaigns, but it doesn’t feel wrong in the same way for the Sierra Club, the ACLU or the FFRF to do the same. But I don’t see how you can draw a principled distinction between those cases.

Is it that some groups are non-profit and some are for-profit? But why should that be the crucial distinction? People who want to make money have the right to speak on political issues as well as people who don’t. Is it that some groups are businesses and others are formed explicitly for political advocacy? Maybe, but it would be easy for a corporation to spin off its own wholly-owned and -funded subsidiary to do its lobbying, and it does seem fair to me that manufacturers, say, should have a voice on American manufacturing policy, or that solar and wind power companies should have a say on energy policy.

Is it that corporations should be allowed to advocate on issues, but not for or against specific candidates? But that’s a distinction without a difference: anyone with a grasp of political realities can put together an “issue” ad which clearly communicates which candidate they want you to vote for. I’ve always said this, which is why I also support abolishing the toothless, easily evaded rule that allows churches to advocate for issues but not politicians, and just taxing them like everyone else.

Now, since corporations aren’t people, I think their right to enter politics can be limited in other ways. For example, I don’t think they should have a right to anonymous speech: I’d absolutely support a law that says any corporate-funded political ad must have full disclosure about who’s paying for it. As the Netroots Nation panelists pointed out, even Justice Kennedy was adamant that disclosure was essential when he voted for that decision (and predictably, the Republicans have refused to pass a disclosure law). Another sensible rule would be that a public company must get the approval of its shareholders before running political advertising, which seems only fair since they are, after all, the owners.

But the fundamental issue isn’t that corporations can run ads: it’s that those ads work. After all, no matter how many millions they spend, Alcoa and GM can’t vote themselves; they can only try to persuade. If a flood of anonymous, baseless smear ads can sway people to vote against a good candidate, then the real problem is that people are easily persuaded to vote for bad reasons, and as serious a problem as that is, I don’t think it can be fixed through legislation. For one thing, even if we completely prohibited political ads by corporations, there are still individual billionaires with strong political views who could pay for as many ads as they liked.

In my imaginary rational utopia, there’d be no need for campaign finance laws: all citizens would be well-informed, critically thinking voters and would cast their ballot on a careful consideration of the facts. False or baseless attack ads wouldn’t have any effect on people’s votes, no matter how many millions of dollars were spent to amplify them. Of course, we’re a very long way away from that world, and while I want to bring it closer, I don’t know if it’s possible to do it through the law. But I’m open to alternative suggestions. Your thoughts?

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