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Friday, May 18, 2012

Why the ire over Citizens United?

I agree with Sam's post about the Toobin story on Citizens United--it does seem like much ado about nothing. My own theory about the internal dynamics at work considers the history of individual justices, namely Justice Kennedy. Austin v. Michigan Chamber of Commerce, the case Citizens United overturned, was decided in 1990, during Justice Kennedy's first full term on the Court, and Kennedy wrote the principal dissent (joined by O'Connor and Scalia). He likely had been itching to overturn that case since 1990 and the change of personnel and passage of time gave him the votes (save the Chief, at the outset) to finally do it.

Now, a different issue: In a comment to Sam's post, Orin Kerr says:

I suspect Toobin's article is getting a lot of favorable attention because a lot of his audience starts off with the belief that Citizens United is an evil ruling that the conservatives foisted on the American people on behalf of big corporations. The decision is so evil, the thinking runs, that how it came about is not unlikely to involve a devious machination.

Why is so much ire aimed directly and uniquely at Citizens United, out of the entire body of campaign finance law? Why is this case perceived as the alpha and omega of bad law on the subject? Yes, Citizens United overturned Austin. But Austin was 20 years at this point, so it was hardly Justice Brandeis in Erie overturning Swift. And Austin itself was arguably the First Amendment anomaly--the one and (at that point) only time the Court had accepted the equality rationale for regulating campaign spending (although it was equality in the guise of corruption). Austin could not be reconciled with Bellotti v. Bank of Boston in 1980, which invalidated a ban on corporate expenditures in an issue election, or, more fundamentally, with Buckley v. Valeo in 1976. So why pick on Citizens rather than these earlier precedents, especially Buckley, which is the case that introduced the fundamental idea that expending money for expression is First-Amendment protected?

Some of it is that the Court had to overturn precedent, but again, this was not a particularly venerable precedent and it was only one in a broader body of case law.  Some of it is the process--relisting, ordering new briefing, etc. And Toobin's narrative supports this explanation. But, as Sam points out with respect to McLean Credit, this is not so unusual. Some--and I suspect a lot--of it is recency bias--the most recent case is the most important case and the one to praise or criticize, depending on your viewpoint. That Citizens United is grounded in prior case law ceases to be the issue; it is all about the newest case.

I actually noticed something similar in discussions of Garcetti v. Ceballos, which held that a public employee enjoys no First Amendment protection for expression that is part of his job function. There were immediate fears for the effect of Garcetti on academic scholarship; since academics were speaking or writing as part of their jobs, their speach was unprotected. But it's not as if pre-Garcetti doctrine--which accorded no protection to employee speech that was not on a matter of public concern and spoken as a citzen--was particularly protective of employee expression;an English professor fired for an article on Jane Austen likely would not have been protected even without Garcetti.

Posted by Howard Wasserman on May 18, 2012 at 12:57 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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The premise of progressives, since Woodrow Wilson published his book about government before he went into politics, is that the Constitution does not establish any fixed rules, and that so called constitutional jurisprudence was a show for the rubes that concealed the Justices' will to power.

To progressives, any court decision that does not uphold progressive doctrine is wrong and upsetting . They can not point to a doctrinal failure by a court that rules against them, since they do not believe in legal doctrine.

The progressives hate Citizens United because it allowed non-progressives to send non-progressive messages to the hoi poloi. A few years ago, when the Media Gatekeepers were firmly in command it might not have been so upsetting. But, now it is irritating, especially because the Obama campaign is discovering that it is hard to raise funds from people you demonize. Progressives are beginning to worry that they, like their spiritual ancestor, the Wicked Witch of the West, might be melting:

WITCH: How about a little fire, Scarecrow?

The witch sets the tip of her broom on fire from a sconce and uses it to set the Scarecrow's arm on fire.

SCARECROW: Help! I'm burning! I'm burning! I'm burning! Help! Help! Help!


Dorothy picks up a bucket and throws water on Scarecrow, but some of it hits the Witch in the face. The Witch screams as the water hits her and she begins to melts away.

WITCH: Ohhh -- you cursed brat! Look what you've done! I'm melting! Melting! Oh what a world -- what a world! Who would have thought a good little girl like you could destroy my beautiful wickedness!? Ohhh! Look out! Look out! I'm going. Ohhhh! Ohhhhhh....

Posted by: Walter Sobchak | May 25, 2012 12:27:50 AM

" it struck down a popular law"

There's not a lot of evidence that McCain-Feingold was all that popular. It was passed with the aid of an astroturfing effort.

Posted by: Ernst Blofeld | May 24, 2012 10:01:27 PM

I tend to agree with elkh1: specifically, the speech restrictions in McCain-Feingold exempted mainstream-media outlets, providing those corporations (and their corporate owners, if they're subsidiaries) a great advantage in that they were permitted to criticize or praise politicians running for office. Hence, when the decision was handed down, they lost a competitive advantage. Naturally, they inveighed against it. And naturally, they didn't tell their viewers and readers why they were so outraged.

There are an awful lot of people who get most or all their information about current events from precisely the corporations that were advantaged by McCain-Feingold, and who therefore have an incentive to lie or spin.

Consider the commenter AF, who remarked that "Most people think that it is consistent with the First Amendment for Congress to regulate the amount of money corporations can spend on political campaigns."

The comment is not strictly relevant to this discussion, since Citizens United dealt with a group of documentary filmmakers being threatened with imprisonment for showing a movie that was critical of a politician. "Money spent on political campaigns" was not at issue, unless any praise or criticism of a politician is considered "campaign spending".

And yet this was the spin of the media, and therefore it's what comes out of people's mouths. In other words, the ire is because people have been lied to about this decision. If people were told the facts of the case, there'd be a lot more ire at the FEC, McCain, Feingold, the rest of the Congress that voted for McCain-Feingold, George W. Bush, et cetera. But they haven't been. Most people I talk to seem to think the case had something to do with campaign donations.

Posted by: jaed | May 24, 2012 7:11:50 PM

Because Citizens United diluted the power of the Democrat's propaganda machine aka the MSM.

Posted by: elkh1 | May 24, 2012 12:40:15 PM

"Non-progressives" have been winning speech cases for a lot longer than 2009. That "monopoly", if it ever existed, was destroyed by the commercial speech doctrine, R.A.V., Rosenberger and related "religious viewpoint" cases, and (depending on your point of view) Hurley.

Posted by: Howard Wasserman | May 24, 2012 10:34:34 AM

"Progressives" look at constitutional interpretation the way Muslims look at territory: What's ours is ours forever and always; what's yours is our next target...the arrow of progress may only point in one direction....

A decision that repeals a precedent they like is always a huge evil. Overturning precedent to advance their agenda is just the natural evolution of the living document on the way to perfection (blah, blah).

Posted by: VA Teacher | May 24, 2012 10:25:14 AM

I don't believe that any of those previous SCOTUS cases caused the then-occupant of the White House to scold the Supreme Court at a State of the Union address. Obama said it it was wrong, ergo...

Posted by: Neal Sheeran | May 24, 2012 10:18:08 AM

Citizens United broke the "progressive" political speech monopoly they have been building up oh so carefully over the past 50 years.

Posted by: motionview | May 24, 2012 10:14:55 AM

Many who are against the decision seem to have gotten the impression from popular press reports that all of a sudden, the Court created 'people' out of organizations from thin air. They are completely unaware of the history of treating companies as people in certain circumstances and the legal precedent and reasoning supporting that stance.

Posted by: Fred | May 24, 2012 9:59:22 AM

Come on, guys. There's a simple reason why they're complaining about Citizens United and not the others. *They've never heard of the other cases.* That is, they're ignorant, both of the law and the precedents. At least the rank and file complainers are ignorant. The rest are just keeping silent because it would be politically inconvenient to note that most of the whining about Citizens United is ignorant. Why unravel a perfectly useful misapprehension?

Posted by: ern | May 24, 2012 9:51:06 AM

Some of the distress from the partisans is probably related to the loss of competitive advantage that Citizens United represents for the big money unions (SEIU, UAW, Teachers) and the left-leaning non-profit foundations (Tides, Ford, etc). Their money and hence speech was mostly unrestricted pre-Citizens United, whereas corporate and individual expenditures were subject to much stricter limits.

Posted by: Joe Blow | May 24, 2012 9:39:33 AM

The left, for some reason that isn't entirely clear to me (probably because it gets in the way of their agenda, such as environmental law taking away property from corporations, etc.), has something against the idea that "corporations are people" that well predate Citizen's United, saying it is all a misinterpretation of precedent, etc. I have heard these things before Citizen's United was decided.

What happened with Citizen's United is that the concept became more promenent and relevant, and then the insistence that the court overturned 100 years of precident (although I think everyone knows stare decisis is latin for "decisions I happen to like"), just energized the right buttons.

Posted by: Nobody | May 24, 2012 8:54:14 AM

We now know who wrote Buckley, and the relevant parts were drafted by Justice Stewart. Powell wrote the parts on disclosure and Brennan on public financing.
See The Untold Drafting History of Buckley v. Valeo, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=320828

As to the ire against Citizens United, I think it has more to do with the court's failure to recognize the potential for corruption from independent spending compared to what people think they know about how the world works.

Posted by: Rick Hasen | May 21, 2012 3:41:25 PM

I think the ire against Citizens United can be explained by the fact that it struck down a popular law for reasons the majority of the public believes are weak. Most people think that it is consistent with the First Amendment for Congress to regulate the amount of money corporations can spend on political campaigns. Very few people know, or care, what precedents the decision was based on.

Posted by: AF | May 20, 2012 9:17:27 AM

My experience is that The Colbert Report mirrors the degree to which Supreme Court opinions are villified by the Left. He reported widely on Citizens United but was silent on the other cases mentioned. Obviously I'm not saying "it's all his fault" but the pattern is undeniable. Perhaps he's just a conduit of the cause-du-jour though.

Posted by: Joel | May 19, 2012 5:58:17 PM

Douglas: If you're a critic of the Court's campaign finance jurisprudence, Buckley is original sin. It should be part of the discussion, but never is.

Will: AFE involved both a regulation and a constitutional decision that were much subtler, based on more-secondary First Amendment principles, and more difficult to reduce to a bumper sticker ("corporations aren't people"). CU involved much blunter issues.

Posted by: Howard Wasserman | May 19, 2012 12:47:45 PM

One thing about recency bias. Citizens is not the most recent, controversial, campaign finance case. Arizona Free Enterprise v. Bennett is. So there must be some other explanation of why Citizens, rather than AFE, has become the bête noire.

Posted by: William Baude | May 19, 2012 11:43:39 AM

I meant Buckley not Bellotti. My bad.

Posted by: Douglas Levene | May 19, 2012 10:16:43 AM

My understanding (which could well be wrong) is that Justice Brennan authored the per curiam opinion in Bellotti. His traditional understanding of free speech is no longer popular on the left. Maybe that's why liberals don't like to talk about the Bellotti case, with its ringing denunciation of enforced equality of political speech ("wholly foreign" to the constitution) and its broad understanding that money is required to spread a message. Bellotti stands for freedom of speech, emphasis on freedom, with the right of everyone to use whatever resources they have, be it celebrity, brains, looks, education or money, to convince their fellows to vote one way or another. Toobin and his ilk no longer believe in this freedom; they believe the Government should ensure that everyone has an "equal voice."

Posted by: Douglas Levene | May 19, 2012 9:28:31 AM

Bellotti was decided in the 1970s, when liberals were busy defending the Supreme Court from charges of activism, not making those charges. And the vote line-up didn't fit a neat political story, as the most conservative Justice, Rehnquist, dissented.

Posted by: Orin Kerr | May 18, 2012 6:10:46 PM

You're probably right. But didn't we have all that already? Bellotti announced that corporations have free speech rights thirty years ago. Perhaps the better question is why it is now being treated as if it originated in CU.

Posted by: Howard Wasserman | May 18, 2012 4:58:08 PM

It's all about the spin. To its critics in the political arena, Citizens United is the case in which 5 conservatives pretended that corporations are "people" in order to help corporations corrupt campaigns and elect more Republicans. This spins fits several liberal memes: Conservatives care about corporations instead of people, conservative judges are corrupt partisans, etc.

Posted by: Orin Kerr | May 18, 2012 4:31:06 PM

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