The Supreme Court’s Citizens United Decision Should Be Read.

President Obama has said that the people who are all bent out of shape about Obamacare just don’t know what it is and that once they know, they will be happy with it. I agree with the first part of that statement. I don’t know what Obamacare is, and doubt that at this point anybody else does, even President Obama. How he can say that once we know what it is we will be happy is puzzling.

Similarly, judging by the comments on various threads here, lots of people are unhappy with the Supreme Court’s recent decision in Citizens United v. FEC. Unlike Obamacare, the full text of the decision is available and has been since January 21.

It strikes me that at least some of the displeasure is based on misunderstandings of what the decision says. The principal misunderstanding is that the decision permits unlimited direct corporate campaign contributions. It does not.

Comment 3 here notes that “the Supreme Court ruled against McCain-Feingold, unleashing unlimited corporate campaign contributions into the political scene. ” Comment 3  here notes,

corporations can speak on behalf of their interests, and so can unions, any other association or group. They can even place ads on TV to their heart’s content. No problem there.

But where you’ve got to draw the line must have to do with direct contributions to a political campaign. And that goes for unions and other such aggregates as well. It not only violates “one-man one-vote” principle. It also goes beyond the freedom of speech act and perverts the political process.

On the same thread, comment 7 observes, “What IS a problem is that they didn’t lift the limit on contributions by individuals at the same time.”

And on it goes. However, the Court’s decision in Citizens United dealt, not with campaign contributions, but with “using . . . general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U.S.C. §441b.” (emphasis added). The Court did not expand the ability of corporations or other entities to make contributions to candidates. As the Court observed,

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations–including nonprofit advocacy corporations–either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

It little matters whether I agree with what the Court did in Citizens United or with some of the things some corporations and labor unions say. Corporations may be worse than any other conceivable association of people, and so may labor unions. It may be rational to disagree, even rabidly, with some of the things they say or do. Those issues were not before the court.

My point is simply that before agreeing or disagreeing with the Citizens United decision, or any other decision, it would be useful to read it. That seems not to have been done in many cases.

First published at BlogCritics on January 24, 2010

About danmillerinpanama

I was graduated from Yale University in 1963 with a B.A. in economics and from the University of Virginia School of law, where I was the notes editor of the Virginia Law Review in 1966. Following four years of active duty with the Army JAG Corps, with two tours in Korea, I entered private practice in Washington, D.C. specializing in communications law. I retired in 1996 to sail with my wife, Jeanie, on our sailboat Namaste to and in the Caribbean. In 2002, we settled in the Republic of Panama and live in a very rural area up in the mountains. I have contributed to Pajamas Media and Pajamas Tatler. In addition to my own blog, Dan Miller in Panama, I an an editor of Warsclerotic and contribute to China Daily Mail when I have something to write about North Korea.
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1 Response to The Supreme Court’s Citizens United Decision Should Be Read.

  1. Pingback: Opinion Forum » President Obama Is Incompetent and the Unicorns He Rode In on Are Devious

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