For whatever reason today the Citizens United decision truly and finally irked me. No John McCain is not to thank.
But in discussing it it led to a lot of thoughts of mine as to how far reaching this is. Some may have been answered as I have not gone over it enough times to really parse its meaning. I understand it. I understand it as a departure of law. And I find it interesting to discuss. I hope you do as well. Some thoughts/comments below the fold.
The first considerations I had were that this is such a gross departure from law that I can only really liken it to when Internet issues came up; judges attempted to apply common law concepts which didn't fit (is a domain a trademark? Is it like a street address? and so many issues I took a course on it. (Posner of course saw Cyberlaw as nothing more than some new flavor, and that an economic viewpoint was the same as always).
When I first think of the concept of the holding- I consider that looking at the first Amendment they have chosen to intertwine two completely separate rights.
Amendment 1 - Freedom of Religion, Press, Expression. Ratified 12/15/1791. Note
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That is there should be two holdings (if you believe their reasoning). First that Congress has made a law abridging the right of people to peaceably assemble. But they haven't. They had simply said when you assemble we are limiting and restricting how you can.
So my guess would be that is why they convoluted it along with the freedom of speech (the second would be you are interfering with speech). I see nothing in the constitution that says Congress may make no law abridging the right of peaceful assembly and when so assembled that body has a freedom of Speech (as states do often you cannot run a Public Charity and engage in political activity). Arguably the only proper consideration is/was the Freedom of Speech. And that is how it should have been analyzed.
I truly wonder the implications. Some of the things I may say may sound silly, but if you have been to Law School that is the way that you test the bounds of understanding to see how imperfect a law is.
But first, I considered a strand of law. Well two. I will just think of the Corporation. Generally, if I start an LLC, or Corp, I don't observe formalities, I don't have separate bank accounts, and you sue my corp. Your lawyer should try to "pierce the corporate veil". That is saying "hey Court ClevelandAttorney does not deserve the protections afforded a corporation because he uses it as his piggie bank/alter ego". Now because it is such a gross departure (Citizens United) it is interesting to consider it's implications (to me). I liken it similarly. That in this case it is simply individual's perspectives utilizing an "alter-ego". I don't know what the consequence would be other than disregarding the corporate form. But it seems to me the correct analysis (even though i have never heard of Veil Piercing outside of a suit to disregard the limited liability you are afforded, but hey I never heard of much of what Citizen's United claimed was the law) would be something similar, that is to say if you engage in speech, and you are simply doing it using a Corporate shell, that shell is your alter-ego. The speech is truly that of the individuals comprising the decision making to make it. The corporation should not be a person.
There is after all speech that is not allowable under any circumstances. Who do we punish now? The corporate person? We cannot send them to jail if the board of directors engages in the category of speech known as speech leading to immediate threat of violence (so if Coca-Cola's board spoke to their employees and said follow us "Coca-Cola" as we march to burn down Pepsi) who is speaking? What if they pay someone to do it out of Coca Cola's revenues? I know this is ridiculous but it is a point to show how ridiculous the law is. We'd obviously say we don't care you're CEO and used corporate money that is fraud on your SH's and Coca Cola well nothing happens to you. Should it now?
Similarly, there is an acknowledgement in law that SOME acts that are aimed at either a social rather than purely $ goal or the judgment of the Corp's leaders are given SOME deference. If we are allowing them to use money to speech is there a line? I would be fairly upset if my capital injection into the stocks I hold went towards a viewpoint I disagreed with rather than Ordinary Business. I wonder then to what extent Corporations are paying money into super-pacs. Is there a list? If so if you own stock or want to cause a stir I would think it a very interesting decision if a derivative suit (ie a suit brought by a SH in the name of the Corporation saying you are dong this bad) occurred. If money is speech can they say they sell beverages then waste revenues on Romney ads rather than paying me a dividend?
Further, this seems very problematic in terms of Non-Profits. They enjoy a special status. I can spend money and deduct it if they have the right status' with the IRS. I could speak on my own. I get no tax benefit. Now I can apparently speak by contributing paying, deduct it and what get a write-off? I see that as double-dipping. I do not see how many states and the IRS are not promulgating new rules. Ok if you have a corporation that is really a collection of political activism contributing to them is not going to be deductible. (A third bite at the apple being if they are speaking and lobbying on behalf effectively of an issue that supports your business or helps it).
So how do we treat corporations now?
As to money as speech. I can think of the type of example a Con Law Prof would ask. "I am pulled over by a police officer, I give him a $50.00 bill and tell him it is due to my disagreement with the law I am being cited for, or for the FOP". Is that not a bribe? Am I speaking?
Does this completely invalidate those arguments against the ACA? If the government is making me pay money whether it be taxes, tolls, licenses etc, is it implied that my agreement to pay is speech validating the various social programs it supports? If so, why then can the government not similarly enact the individual mandate? I choose to pay so implicitly it is speech (if the SCOTUS gets in the way are they the ones now trouncing on this new view of speech?) as the government can force such speech (Medicare, Medicaid, etc.). It is no longer just money?
What about the legality of various criminal endeavors. Prostitution? Am I saying with my x amount of money (I have no idea) "I would like to sleep with you" the same as if I bought a beer, and by accepting we are both consenting adults? Money is just speech right?
What if I am gambling. Illegally. What if I am doing so because I disagree with the laws against gambling so utilize my money in the act. What if I am doing so to gather money as I have no other means to be able to buy a commercial to say something?
Now I do not adhere to the ridiculousness of much of this, but that is part of law- taking things to places they go to see how ridiculous they may be. I think I can make a pretty good argument that if I offer a prostitute money to make that illegal is denying my free speech. What if I do it on the condition that she utilize it for obtaining certain literature that is politically charged? And on and on . . .
May edit later as I think more.
To me most interesting/realistic is if/when a Company engages in contributions (a publicly traded one) how a derivative suit would work out. Are the Majority Sh's breaching their fiduciary duties to you (they do have them to minority SH's even if they are billionaires and I own 1 share).
Lunchtime I suppose time to digest.