Yeah, I know, I know, evil corporations are about to flood the political process with all sorts of outlandish expenditures certain to wreck our political discourse and install a thousand-year plutocracy. But before we all dive off the deep end, a quick before-and-after.
Before Citizens United:
- Corporations could make direct financial contributions to candidates in 27 states, but not in federal elections.
- In 26 states, corporations could run direct advertising for or against the election of a state/local candidate.
- In all 50 states and in federal elections, corporations could run "issue advertising" against candidates saying "Sen. [X] is wrong on this issue and is a bad person, so call him on the phone and say so," and as long as it didn't say "and you shouldn't vote for him" and wasn't too close to an election, it was legal.
After Citizens United:
- Corporations can make direct financial contributions to candidates in 27 states, but not in federal elections.
- In all 50 states and in federal elections, corporations can run direct advertising for or against the election of a candidate.
- In all 50 states and in federal elections, corporations can run "issue advertising" against candidates saying "Sen. [X] is wrong on this issue and is a bad person" as well as "so don't vote for him."
Is this really that
large of a difference? It's worth noting, by the way, that the tax referenda which were passed on Oregon on Tuesday were largely promoted by direct spending from the SEIU, AFSCME and NEA/OEA treasuries
, which Oregon already allowed and are now constitutional everywhere. (Unions are
protected by Citizens United too. That said, before Citizens United
there were legal distinctions between referendum-related speech and candidate-related speech, but not so much any more.)
Secondly, even for those of us who believe Citizens United was the right constitutional result, it's still heartening to see that Congress is already at work on legal and appropriate ways to limit its scope. The Sunlight Foundation's Daniel Schuman is compiling the legislation introduced thus far, and it's an intriguing mix of shareholder empowerment measures and efforts to limit the ability of foreign nationals to circumvent the existing ban on their electoral speech through corporate entities.
As to the latter, it will be interesting to see Congress and the Courts work through the question of whether a one-drop rule is sufficient to constitute a sufficiently compelling state interest in restricting a corporation's speech, or whether some larger level of foreign ownership or control is required. On the former, my friends at the Brennan Center for Justice at NYU Law have some simple proposals for giving shareholders a voice, urging Congress to adopt these three requirements:
- equiring disclosure of political spending directly to shareholders.
- mandating that corporations obtain the consent of shareholders before making political expenditures.
- holding corporate directors personally liable for violations of these policies.
On a separate front, Bruce Ackerman and Ian Ayres suggest
extending the ban on federal contractors' direct contributions to federal candidates to include their independent pro-candidate speech as well.
All of this, by the way, is consistent with the President's remarks on Citizens United during the State of the Union address. While acknowledging that it did overturn certain precedents, the President never said that the decision was wrongly decided as a matter of constitutional or statutory law -- only that he believed it would lead to bad outcomes which Congress as in a role to ameliorate. And, hopefully, it will.
One final thought: when it comes to content-based restrictions on speech -- the so-called fire in a crowded theater (imminent threat of lawless action ) or child pornography -- we're dealing with speech which creates a harm which cannot be mitigated by counter-speech, whether because of the timing of the harm or the beyond-the-pale nature of the harm itself. With regards to electoral speech by corporations, there's no evidence that we can't just rebut the well-funded bad stuff with good of our own, just as we've been able to beat down the Michael Huffingtons, Mitt Romneys and Katherine Harrises of the world at the ballot box. Be patient, keep supporting the good guys, and trust the free market of ideas.