How do you guys feel about this decision? Although I haven't read the actual decision yet, I can only imagine how the holding is going to destroy any chance this country has of holding fair elections in the future. I don't really know too much about First Amendment law, but I am outraged that the Supreme Court has forfeited our democracy to uphold such an absurd principle. If anyone ever meets a corporation, please let me know.

-- NathanStopper - 23 Jan 2010

Nate,

This is my first responsive post on this site, so I do not know if it will even come up under your topic. In the hope that it does, here is my answer to your open question.

Your comment is aimed entirely against corporations, but you need to remember that the Court's ruling applies not only to corporations, but also to labor unions and not-for-profit organizations. (Citizens United was itself a not-for-profit group.) Labor unions and not-for-profit organizations can be just as self-serving as corporations. Would you have supported the Court's ruling if it had included unions and not-for-profit groups but excluded corporations?

Moreover, I cannot see why the individual members of those groups, in their capacity as private citizens, should be able to fund political advertisements while the corporations that comprise them should not. If a CEO wants to fund an ad campaign with his private wealth, should he be allowed to do so? Why does he lose that right in his public capacity as CEO? As with all decisions CEO's make, he is liable to be removed if his company's shareholders disagree with his judgments. Why should political endorsements be different?

Ultimately, the purpose of groups like unions, not-for-profits, and corporations is to give greater power to their members beyond what they could accomplish individually. Collective bargaining is such a power. The ability to make meaningful political endorsements is another. I do not know why an arbitrary limit should be placed on these groups' vital functions.

-- SamHershey - 02 Feb 2010

Sam, I hope you don't mind I moved your comment here so the conversation could flow a bit more smoothly.

In response to Nate, I started reading the Citizens United decision, but of course I gave up and got back to reading for class because the "decision" is hidden in a 183-page PDF you can find here. So like 99.9% of the population my knowledge comes from secondary sources. I doubt few if any of us here at Columbia Law School have actually read the decision. Who would? It's "legal fiction" anyway right? Who has ever met a corporation? But that's not what's wrong with this case. There are all sorts of fictions we accept daily as integral parts of our lives. In fact, I would say that artifice is the defining factor of our culture. Our clothes are synthetic, our food is processed into the unrecognizable lumps of meat/cheese/etc. we buy in shrink-wrapped packages at artificial community pantries called supermarkets, and our entire society is based upon the greatest legal fiction of all, property rights.

So why (and how could we) pick and choose? Which legal (and other) fictions will we choose to recognize and which will we choose to deplore? The answer is obvious, and I believe it's what Sam was getting at (though Nate never mentioned unions or non-profits and it goes to show the dichotomy of our society, and you only see such clear dichotomy in artificial systems) that we will choose to adhere or deplore those fictions depending on whether we like them. On whether we agree with them. Often, on whether we can identify with them.

Personally, I don't want all the political power consolidated in corporate interests. Besides the fact that concentrated decision-making power in any small number of human beings has proven time and again to be disastrous, there's the fact that I'm not part of that group. And I don't want to be. But beyond these two facts, what reason do I have to think that giving corporations the right to pour as much money into the political process as they want is a bad thing? After all as Sam said, "If a CEO wants to fund an ad campaign with his private wealth, should he be allowed to do so? Why does he lose that right in his public capacity as CEO?"

My gut response is to say that we lose all kinds of rights in our public capacity as anything. Anyone who lights up a piece of crinkled paper filled with the wrong sort of plant or goes for a stroll on the wrong patch of land will find out real quick that they lose their rights to do certain things in a public sphere. But I'm going to assume that there is no obvious reason a CEO should not be able to plunder his company's coffers to finance political candidates he feels will benefit him. And I'm going to assume that average CEO tenures aren't less than 8 years and that they actually care about the long-term viability of their companies and the pockets of their shareholders. And I'm going to assume that most shareholders know more than nothing about the political contributions of the companies that their 401k or other retirement plan invested in for them, and I'm going to assume that if they don't agree with those contributions there is some avenue of recourse they could use to do something about it. And if I assume all of these things it is still a bad idea because, like Sam said, the purpose of unions and corporations etc. is to give greater power to their members beyond what they could have accomplished individually. And until the idea of a corporation becomes more than to maximize the wealth of its shareholders (read: squeeze as much output from as little input as possible, using genetic engineering on chickens and corn, exploiting cheap immigrant or out-sourced labor, lending in a predatory fashion, etc.) giving that particular "group of members" greater power is a very bad idea.

-- ArtCavazosJr - 02 Feb 2010

I agree with both Art and Sam that power is central to this debate. Giving corporations the freedom to support political candidates troubles me greatly; a CEO, rich though he may be, is not nearly so powerful without the heft of a corporation behind him (or her). As Professor Tierney mentioned today at the Citizens United panel, we all know that corporations have long been financing campaigns in one way or another. But I fear the practical consequences of this decision. I fear that political candidates, once elected, will find themselves beholden to the wishes of their corporate sponsors rather than their constituency. Is that freedom? What happens to free speech when one voice silences all the rest?

To assert that a corporation is a person without discussing the practical effects of that assertion is to descend into formalism (a la "where does a corporation reside?" etc.). To Sam's point, it does seem arbitrary to allow corporations and labor unions to act collectively in some instances and not in others. But don't we have to take into account the nature of those instances, and what the consequences of collective action are? I think the acknowledgment in the Austin decision (which Citizens United overruled) that "corporate wealth can unfairly influence elections" still holds, and should outweigh any inconsistency in the case law.

-- CarolineFerrisWhite - 03 Feb 2010

Art, thank you for your response and for moving my post to its appropriate place. I think you raise some interesting points about artificiality in our society. I also agree with your extension of my analysis that we all (myself included) often choose which Court opinions we agree with not on the basis of abstract theories but simply on the basis of whether we dislike the people whose rights are affected. I do not impute these feelings to Nate, but I do maintain that many people who opposed the Citizens United decision would have been delighted by a decision that exclusively (rather than inclusively) freed labor unions to spend without limit. One cannot cherry pick which entities deserve free speech and which do not.

Caroline, thank you, too, for your insightful comments. Just to be clear on this point, would you embrace the Austin decision if it had asserted that "labor union wealth can unfairly influence elections"?

Your answer to that question may well be yes, but even so, I think there are real problems with the Austin argument, namely that it is vague. What is an "unfair influence"? Equally troubling, who gets to decide?

Your fears about government corruption are legitimate, but campaign-finance legislation can have its own corrupt motivation. Incumbents already hold an almost insurmountable advantage in elections. There are no term limits for members of Congress or for elected judges. Isn't it troubling to enable them to legislate (and uphold) limits on how much can be spent to unseat them?

-- SamHershey - 03 Feb 2010

The worry that I have about the decision isn't so much the direct effect that most people here are discussing - that is, the fact that corporations are now free to endorse candidates through the media because, the majority tells us, money is speech. That may or may not have disastrous policy implications, but there's a secondary effect as well: the products that we buy from these corporations now have inherently political implications, and we can't know the ramifications of these implications at the time that we spend money.

Consider this - you're an American choosing which car to buy. Whereas before you might have made your decision based on the safety rating of each vehicle or perhaps because of the interior or the innovative ergonomic technology, now you're forced to consider the ramifications that your purchase will have on the discretion of the car company that you choose to buy from to influence elections. I really like the Focus, but I don't have health insurance. Will Ford spend money endorsing a candidate who opposes health care reform?

I like to think that I make my consumer decisions rationally - that is, by weighing the positive effects against the negative effects the product will inflict on my life and then measuring the sum of that effect against the money I'll have to spend in order to buy it. Now, though, there's a shrouded, mysterious political element to my choice that I am aware exists but that I cannot reliably predict.

You might argue that this has always been the case. After all, individuals have always been able to donate to political campaigns, and the CEO of Ford has always had an increased ability to donate whenever I decide to sign for that Focus because a portion of the money that I pay for that car goes to him. However I might argue that while the effect may not be new, this inherently political character towards product purchasing has now been greatly magnified.

Of course, you might make the counter-argument that this could lead to the democratization of corporations. If consumers began to make choices on which product to buy based upon the election spending that the company would make, corporations might, you could argue, begin to spend only in ways that their consumer base would support. I would argue, however, that this is unlikely. Most consumers won't know about the ability of corporations to make political advertisements with the money given to the corporation from the consumer, and many consumers who do will probably not change their behavior substantially.

-- AndrewCascini - 03 Feb 2010