Making Sense of the Citizens United Ruling

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The Supreme Court's 5-4 decision in Citizens United vs. FEC last week removed limits on the money corporations and unions can spend in political campaigns-and set off a firestorm of criticism.The ruling drew immediate opprobrium from Progressive bloggers and public interest groups. The argument that reverberated through the blogosphere most loudly was that the court (or the conservative justices, at least) had, in violation of common sense, embraced a crazy view of corporations as "persons" that deserve the right of free speech. In the process they had sold our government to the highest bidder, foreign or domestic, and undermined democracy.The law is complicated though. I, for one, am not excited by the idea of Exxon using its ludicrous profits to elect cap-and-trade opponents, but that doesn't mean there's a principled reason to stop them. That was the argument of Glenn Greenwald, in one of the most informative pieces on Citizens United:

I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people -- which is what corporations are -- from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood. Does anyone doubt that the facts that gave rise to this case -- namely, the government's banning the release of a critical film about Hillary Clinton by Citizens United -- is exactly what the First Amendment was designed to avoid? And does anyone doubt that the First Amendment bars the government from restricting the speech of organizations composed of like-minded citizens who band together in corporate form to work for a particular cause?

To Greenwald, the government can't make laws that regulate what people or groups of people say, and we should be more concerned with protecting the integrity of the First Amendment than jury-rigging some ad hoc reason to keep Exxon from spending money in elections. (And, by the way, if you don't think money is speech, here are some questions to think about.)But then came Lawrence Lessig. In his response, Lessig points out that the government already limits free speech in certain contexts. In a government-funded family planning clinic, for example, the government can bar doctors from advising their patients about abortion because the government set up the clinic. And corporations enjoy a similar special benefit that should allow the government to regulate what they say:

The government limits the legal liability of investors in that corporation in exchange for their risking their capital to spur innovation and growth. That benefit is significant. And the First Amendment question is whether in granting that benefit, the state would be free to limit the political advocacy that corporations engage in. It seems astonishing to imagine the state couldn't. State law has historically had wide freedoms to condition the corporate form as they wished.

At the end of the day, I'm convinced that there are legitimate legal arguments for both sides (the decision itself was 5-4 after all, and even the judges I disagree with aren't stupid). I'm also pretty convinced that the outcome of this ruling will be bad, though. It will make it harder to pass good environmental legislation, and that's a bummer to say the least.But Washington was already overrun with lobbyists before Citizens United. And maybe there's a better way of freeing politicians from their corner-office puppetmasters:

The best option is Sen. Dick Durbin's ingenious campaign-reform bill. The idea, which already works well in New York City and other localities, is to set up a public-financing system that rewards candidates who attract small donors. House candidates, for example, who raise at least $50,000 in donations of $100 or less would be eligible for $900,000 in public money. The president must move the bill to the center of his agenda and mobilize his 13 million 2008 contributors to pressure Congress to enact it.

I couldn't argue the legal details of Citizens United with Alito or Scalia (and neither could you). It's probably going to compromise our politicians just a little more. But lets hope it resurrects interest in public financing, too.