Why “Citizens United v. FEC” Isn’t a Huge Deal

Time to fire up politics again. Also, I’m coming down far more on the conservative side, so this is a real shocker. Oh yeah, and it’s long too. Wheeee! …


Anyways, people have been calling the 2010 Supreme Court Case Citizens United v. The Federal Election Committee a lot of things.

President Barack Obama stated that the decision:

gives the special interests and their lobbyists even more power in Washington – while undermining the influence of average Americans who make small contributions to support their preferred candidates [and that] this ruling strikes at our democracy itself [and] I can’t think of anything more devastating to the public interest.


Barack Obama also elaborated in his State of the Union address, stating that:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.


Ralph Nader also condemned the ruling, stating that:

With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars.


Democratic Representative Alan Grayson said:

[This decision is] the worst Supreme Court decision since the Dred Scott case.


Keith Olbermann of MSNBC continued the Dred Scott metaphor and saying:

Today, the Supreme Court, of Chief Justice John Roberts, in a decision that might actually have more dire implications than “Dred Scott v Sandford,” declared that because of the alchemy of its 19th Century predecessors in deciding that corporations had all the rights of people, any restrictions on how these corporate-beings spend their money on political advertising, are unconstitutional.

Keith Olbermann, also continuing to prove himself as the Glenn Beck of the liberal party, added that:

Within ten years every politician in this country will be a prostitute.


Here’s his Countdown where he discusses the subject:


The Facts of the Case

No case is argued in a vacuum — all cases start somewhere with a background question to be argued. Since we’re apparently dealing with an issue more democracy-killing than slavery itself, let’s look at the background facts of the case that were presented to Citizens United v. FEC.

Citizens United is a conservative nonprofit organization, and they wanted to run television commercials promoting their film “Hillary: The Movie” which was a documentary that calls out Hillary Clinton on allegedly lying and refusing to answer questions. This movie was to be aired on DirecTV, but the movie and commercials were removed by the US Government.

The US government used the McCain-Feingold Campaign Reform Act of 2002 as their reasoning for pulling the movie and ads, as this Act expressly prohbited corporations and unions from using their funds to either advocate or defeat a candidate. In response, Citizens United sued.

In January 2008, the case went to court, starting in the District Court for the District of Columbia. The Federal Election Comission (FEC) argued that the film had no other purpose than to discredit Clinton, and as a result, was in violation of the McCain-Feingold Act. Citizens United argued that the film was fact-based and nonpartisan. The District Court found in favour of the FEC.

The Supreme Court heard this case in early 2009, but decided to reargue the case on September 9, 2009 because they decided that the case involved “larger issues”. The court redefined the issue to be whether the campaigning by corporations was a form of speech that is protected by the First Amendment.

AT&T: More evil than slavery itself.


The First Amendment, Speech, and You

The First Amendment prohibits Congress from a lot of things, but the most relevant to this article is what’s called “The Freedom of Speech Clause”, which states that “Congress shall make no law [...] abridging the freedom of speech”.

Since then, the scope of free speech has greatly changed. Speech is more than just words — speech has been broadened to pretty much anything that expresses an opinion or idea. Actions such as burning an American flag or participating in a Ku Klux Klan ritual have been upheld as a form of speech, and thus are protected by the First Amendment.

Free speech is also not 100% free. Speech that results in “a clear and present danger” — such as yelling “FIRE!” in a public location just to get people to panic and evacuate, when there is no fire — is not upheld as a valid form of speech, and can be criminalized without violating the Free Speech Clause. Limits also exist on libel and slander, as well as several other categories.

So, in the world of Free Speech, not all speech is words, and not all speech is free.


Rationale for The Citizens United v. FEC Decision

The opinion that Supreme Court delivered in Citizens United v. FEC is over 180 pages (you can read it here), but — in summary — Justice Kennedy made his decision based on several reasons:

The first was that it was nearly impossible to distinguish between the Citizens United documentary and newspapers. Citizens United was using it’s personal treasury to spread political opinions, but news companies such as CNN use their millions to influence people’s votes everyday. Why does CNN get an exception when Citizens United does not?

The second is that the First Amendment does apply to corporations as seen in NAACP v. Button, and that “political speech is indispensible to a democracy, which is no less true because the speech comes from a corporation”.


But Corporations Aren’t People!

The dissenting opinion (argument against the decision by the Justices who voted against it) was based mostly on the fact that “corporations aren’t people in society”.

It makes perfect logical sense that “corporations aren’t people” and thus shouldn’t be able to produce “speech” — why should corporations as an entity be given the same political abilities as a citizen has? Why should corporations be able to influence elections?

The fact is, however, that corporations already have the same political abilites as a citizen, and already do influence elections. Groups such as the NAACP, the NRA, the AARP, etc. are already corportations that exist solely to influence people’s opinions prior to, and during, the election.

The real idea is not making corporations into people, but in granting power for activists and lobbying groups to be active and lobby. Corporations still can’t run for public office (as much as they want to) and they won’t be able to vote.


But All Companies We’re Equally Banned from Influencing Elections!

That’s worse than not true, that’s downright naive.

The real idea isn’t that Citizens United should be treated as a person, but that activist groups should not be legally treated differently than newspapers. Newspapers can endorse candidates right up to the day of the election, using their millions of dollars to distribute their lengthy advertisements to a wide populous. Fox News can use their millions to put polemic commentators in front of every single TV screen of America. If Geico wanted to, they could put pro-Obama lawnsigns in front of all their corporate offices.

So what is stopping Citizen United from running their ad? How is this different?


It’s just another application of throwing millions of dollars around. It seems like something we shouldn’t be promoting — but in fairness, if the other guys are allowed to throw around their millions of dollars, why not everyone? The lobbyists have been doing this for ages.

The change that the case caused is entirely topical and has actually has no pragmatic, tangible effect at all. As the opinion of the case noted, corporations already had the power under the law to fund television ads through corporate-created and controlled political action committees. All the ruling does is eliminate the middle-man — there’s no more need for a Political Action Committee (PAC) to get into the electioneering business.

Anyone who argues that now corporations can throw millions of dollars to oppose lawmakers who go against businesses is naive. OOH SCARY throwing millions of dollars to oppose candidates…!

The fact remains that companies already spent millions of dollars to oppose lawmakers before this ruling.

This isn’t Dred Scott! This isn’t even radical! Dred Scott v. Sandford radically redefined the legal scene by declaring slavery constitutional. Citizens United v. FEC radically redefined the legal scene by… what… making it legal for elections to be influenced by companies?

C’mon, don’t pretend like that’s something new and radical… That was happening already! This case doesn’t move the line toward or away from anything. It keeps the status quo! It’s the exact opposite of radical!


The bottom line is that this Supreme Court case didn’t allow for more lobbyists. It didn’t allow for less lobbyists. It just made who is a lobbyist more clear. Seeing as it is nearly impossible to legally define the distinctive political differences between Sprint, who used to be unable to donate; Citizens United, who could vaguely donate; and NRA, who definitely can donate, it’s easier and better for America to allow them all to donate rather than kill democracy by preventing none of them from donating.


But Sprint Can Donate Millions of Dollars to Mitt Romney!

Actually, no.

The Supreme Court did rule that corporations can spend as freely as they like in federal elections, throwing out a 63-year-old law that attempted to restrain the influence of business and labor in elections, and they did overturn two of their previous decisions. But they did not remove the pre-existing restrictions that prevent both people and corporations alike from giving millions in individual donations to a specific candidate.

Instead, they have to put up advertisements on the television like anyone else. Also, eight of the justices (everyone but Clarence Thomas) did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements. Justice Kennedy explained it by stating that “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Corporations will still have to follow the same rules as the PACs they used to create.

But really, is this any different? Being honest, in the past all it took was a political action committee to place an advertisement on television. And when it comes down to donating to television ads, millionaires could already individually buy their own ads.

Furthermore, nearly all companies with vast finances are still accountable to shareholders. Most companies want to remain out of the political scene — if Sprint donated millions of dollars to ads for Mitt Romney, they would have to be identified on the ad as required by law, and they would do so risking losing support from Democratic users.


But Foreign Corporations Can Influence Our Elections!

In Obama’s criticism of Citizens United v. FEC he accused the case of allowing foreign lobbyists to influence the election. That’s just not consistent with the ruling of the case.

When Obama spoke those words in his address, Justice Samuel Alito, who with the other justices sat at the very front of the chamber last night, shook his head and mouthed what appeared to be the words “not true”.

This is because there is still a law barring foreign corporations from spending money in connection with U.S. elections, 2 U.S.C. 441e(b)(3). This law has not been overturned.

This was also acknowledged directly in the ruling, which states:

We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process [because a provision of Federal law] bars any “foreign national” from making any direct or indirect contribution of money or anything of value “in connection with any federal, state, or local election.”

Your future president?


It Shouldn’t Take Millions of Dollars to Campaign!

Yes, it probably should not. This is the origin of the Green Party’s complaint.

Many of the more wingnut-ish people are hailing Citizen United v. FEC as:

The Court held that Americans acting together through a corporation or other type of group enjoy the same free speech rights that they enjoy individually. Noting that wealthy individuals can spend unlimited money on election ads for radio and television, the Court held that ordinary individuals could likewise pool their money together to engage in the same type of speech, striking down a federal law that made such corporate action a felony.
The Big Government Blog

Yes! Now us citizens can group together to spend the millions of dollars necessary to participate in democracy! How wonderful!

All you have to do is form a corporation! How easy! Thanks, Supreme Court!

But really, in reality the influence of lobbyism and the rising costs of campaigning are a problem, but they were a problem before this case even existed.

It’s a problem that would have to be fought separately under the lobbying rules and regulations that were not turned down by the Supreme Court.

This case is not doing anything that’s fundamentally new — lobbyists existed before this case, and they continue to exist after this case.

Big deal.


In Conclusion

This is just another example of people seeing the media hype and overreacting to facts they hear that aren’t even true. I don’t expect people to read the hundred page opinion delivered by the Supreme Court, but they should at least familiarize themselves with the general arguments of the case, available in a ten page syllabus.

Also, elected leaders — especially Barack Obama — should know better than this, and they should be responsible for communicating the correct facts. While this isn’t a slip-up on the same order of telling a news outlet that there was no terrorist attacks under Bush — it’s still very bad to claim that foreign corporations can influence elections when they can’t, and it’s just blatant fear-mongering to compare this case in any way to Dred Scott.

Democrats, I expected better of you.

I hoped I wouldn’t need to use my blog to call you out on any of your crap. Your crap had always been below the bar set by the crap of Repbulicans. Your crap had always been at least tolerable — just calling the President a “Negro” or flip-flopping on key issues

But this time. You’ve gone too far.

Shame on you.

Followed up in: Citizen United v. FEC: Case Brief


I now blog at EverydayUtilitarian.com. I hope you'll join me at my new blog! This page has been left as an archive.

On 3 Feb 2010 in All, Constitutional Law, Political Commentary. 3 Comments.


  1. #1 Bernie says:
    5 Feb 2010, 2:44 pm  

    Peter, your article is well written.

  2. #2 Joe says:
    9 Feb 2010, 11:33 am  

    This article changed my life

  3. #3 Jeff says:
    6 Mar 2010, 6:36 pm  

    But… But I went and bought my katana and skateboard and neon lightning and everything! I was ready to live in a cyberpunk dystopia! I WAS READY, DAMMIT! Saved up a fortune in rare metals to pay for cybernetic implants post-hyperinflation!

    And now I’m hearing that corporations aren’t actually more powerful than the US government yet? :( Sadface.

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