Friday, January 29, 2010

Citizens United - again

There has been a lot written, and some here, too, about the recent Citizens United decision. Not all of it has been illuminating, and there has been some of that here, too. It is perhaps necessary to look at the facts of the case, and at our old friend the procedural posture, to make out the outline of what will be a continuing debate.

The case involved the airing (on cable television) of a conservative docudrama about Hillary Clinton, produced by Citizens United, a conservative 501(c)(4) non-profit corporation (the name proving once again how brain dead conservatives are to irony). You can’t deduct your contributions to a 501(c)(4), since it isn’t a charitable organization.

The film, just called Hillary in the Supreme Court opinion, featured a star-studded cast of the caliber of Ann Coulter, who was, in fact, in it. Fearing that its obvious hit piece on Hillary Clinton was “electioneering” of the kind prohibited by federal election law near a federal election, would be prohibited by the FEC, and maybe earn it a big fine, Citizens United sought an injunction to prevent the FEC from enforcing the law.

The district court said, in effect, you know, now that you mention it, it is electioneering (the advocacy for or against a candidate, not an issue), which is prohibited under McCain – Feingold by corporations or unions within 30 days of a federal election. It refused the requested declaratory and injunctive relief. Citizens United appealed. The case was briefed and argued once.

The Supreme Court took the extraordinary step of telling the parties to go back and re-brief and reargue the case, saying, in essence, we want to take a look at the big picture, here. The Roberts five was spoiling to overturn a couple of the court’s precedents, and when the court asked for reargument, the handwriting was on the wall.

It is important to remember that the case involved speech, not direct contributions to candidates, although the decision has implications for that, too, which is one of the reasons that it is so worrisome. More on that later.

Citizens United did open the floodgates of corporate money for “electioneering,” but it does not mean, at least yet, that corporations – or unions – can give unlimited amounts of money directly to candidates. And while Citizens United, the organization, is a non-profit, Citizens United, the decision, is not limited to non-profits.

This fall, you can look forward to corporate ad buys right before the election that say directly: vote for X because blah blah blah, or against Y for the same reasons.

You can see how Doug Tice would argue that Citizens United merely leveled the playing field of all corporations with media corporations; superficially, it does that. But the true scope of the decision is far, far greater. Media corporations aren’t big government contractors, just for one example.

Campaign finance law is rooted in the concern about corruption of the political process. I’ll have more about that in following posts.

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