Citizens United and Electoral Exceptionalism.

"What will the effect be of the Supreme Court's Citizens United on elections?" Scott Lemieux asks below. For all the reasons he describes, the decision is enormous, radical, and wrong, and it will undoubtedly have sweeping impact on future election law as well as other areas of First Amendment and corporate law.

But it is important not to overstate the immediate effect on our political life. The "OMG, corporations are now people, with free speech rights!" reaction to the decision overlooks the fact that for almost all purposes, corporations do have free speech rights, and should, although they can be subject to balancing tests just as all rights are, as Scott shows. The principle area in which corporate rights are balanced has been around elections, in which speech rights are balanced against the interest in reducing corruption and, until the Austin precedent was overturned today, reducing the distorting effect of money on the process.

Even those restrictions were fairly limited, and in fact, the video at question in the case, Hillary: The Movie, would not actually have been restricted by them. Corporations can use their political action committees to directly influence election outcomes; they can use their own funds to run ads before the 30- and 60-day pre-election windows; they can say anything they want, at any time about issues.

Elections are just one part of democracy. We carve out a carefully regulated space for them, as any democracy should, but that electoral exception is not the whole of politics, as we should be particularly aware today. After all, the election of 2008 produced a president and Congress committed, among other things, to health reform. It hasn't happened, and it didn't happen in the past, in large part because of corporate spending of all kinds. (That was even more true in 1994; this time around, the White House made major concessions to the corporations that ran ads like the "Harry and Louise" series to keep them quiet.) And corporate spending to bring down health reform unquestionably created the environment in which Senator-elect Scott Brown could capitalize on that sentiment -- even if no corporation ever ran an ad that encouraged people to vote for Brown. The election exception doesn't achieve all that much, and the only way to really reduce the role of corporate money in politics and public questions would be to go much further in the other direction, limiting corporate speech (and probably the speech of wealthy individuals as well) in many other contexts -- something that few of us are willing to do.

And even in the context of elections, Citizens United is not the end of the line for campaign finance reform. It's just the end of the line for the traditional kind of reform that relies primarily on futile efforts to limit spending, such as the McCain-Feingold Act. Real reform that expands the ability of candidates and citizens to speak and to be heard is alive and well, and is now the only path to a fair political process.

-- Mark Schmitt

You may also like