I expect Gust Avrakotos’ “we’ll see” parable* (from Charlie Wilson’s War) to be especially apt to this decision; those who expect to benefit from it may be disappointed, those who are disappointed may benefit.
Some of the consequences will depend on legal refinements — tax treatment of expenditures for political speech as a business expense, for example — and others will depend on how the more-naked political jousting develops.
I, for one, think investment in (or development of) Democrat-friendly defense contractors and regulated industry participants would be a handy destination for money, time and effort.
——————————–
* Gust Avrakotos: There’s a little boy and on his 14th birthday he gets a horse . . . and everybody in the village says, “how wonderful, the boy got a horse.” And the Zen master says, “we’ll see.” Two years later, the boy falls off the horse, breaks his leg, and everyone in the village says, “How terrible.” And the Zen master says, “We’ll see.” Then, a war breaks out and all the young men have to go off and fight . . . except the boy can’t, ’cause his leg’s all messed up, and everybody in the village says, “How wonderful.”
Charlie Wilson: Now the Zen master says, “We’ll see.”
[Gust was attempting to warn about blowback from misadventures in Afghanistan -- and was issuing that caution a couple of decades ago. I guess we've seen.]
The ability of the “traditional” press to influence an election is a straw man in any discussion about the actual beneficial effect of money to a candidate or party. The genuine fear is that corporate money – and corporations indisputably have more money than do other entities in a capitalist society – can buy everything in excess in elections: television ads, blog ads, cool video production, and even great posters and buttons. Do you truthfully believe that a NYTimes endorsement is of equal weight as against a, say, $50 million dump by AIG or Goldman Sachs to a national candidate? Really? This is as activist as decision as the Court has made since Bush v. Gore, and potentially more damaging.
Your post is a dramatic oversimplification of the practical effect of this decision. Whether or not Exxon itself is fearful of being demonized for its contributions is totally irrelevant (and the list of companies for which this would be a serious problem is probably no more than a half-dozen)–you are presuming perfect transparency about where corporate dollars are coming from and how they get to a candidate. You know this isn’t the reality–uncapped and unlimited corporate dollars will be “laundered” through any number of third party interest groups, PACs, etc.
The ruling makes me nervous and I think it’s at least overbroad.
In any case, I thought Eugene’s argument was unpersuasive and something of a tangent. The press gets singled out for special treatment in the constitution. Just because newspapers (for the time being) still make money on advertisements and subscriptions doesn’t change that – the press is simply different from other businesses.
I wonder what the intersection of Citizens United and Heller will look like? A corporation should have the individual right to keep and bear arms too. Do legal fictions not deserve to have the ability to defend themselves from home invaders?
you are presuming perfect transparency about where corporate dollars are coming from and how they get to a candidate
They should have knocked out the transparency provisions too. A citizen can watch an ad, form an opinion and do additional Internet research if necessary. No need to know who is paying for it to decide whether it’s true.
But if you want transparency, make sure it applies to news and commentary shows too. I want an accounting of the source of every penny paid to Keith Olbermann and Chris Matthews by their corporate masters and sponsors — with full shareholder lists (names, addresses, phone numbers too). And make sure all this info is scrolled beneath Katie Couric’s and Brian Williams broadcasts for every second they are talking.
I find it somewhat amusing that most of the people who find the ruling to be a good thing offer constitutional reasoning for why it is a good thing — and most of the people who opine about why it is a bad thing are generally whining about the effects of the ruling. If folks want to be taken seriously in debates of a constitutional nature, then it would seem they should offer reasons why the ruling is constitutionally unsound and forgo all of the Chicken Little antics.
For me the question is about whether or not corporations have 1st Amendment rights. If they do, the ruling is a victory for the Constitution. If they don’t, then it is wrongly decided. I don’t pretend to have a good grasp of the history behind the notion that “corporate speech” is protected, so I don’t have an informed opinion about whether or not corporations should enjoy 1st Amendment protections.
pc: I wonder what the intersection of Citizens United and Heller will look like?A corporation should have the individual right to keep and bear arms too.Do legal fictions not deserve to have the ability to defend themselves from home invaders?
Whether or not corporations have guaranteed 2A rights is an open question. That aside, Congress has generally acted deferentially to corporations over flesh-and-blood citizens. Strongest case in point is that if I want to own a machine gun, I have to get a local chief law enforcement officer to sign the paperwork (who’s discretion is unilateral and cannot be compelled in court — except in rare states like Tennessee which have “shall sign” laws), I have to submit fingerprints and photographs, pay the $200 transfer tax, etc. The big stumbling block is the CLEO signoff. Many CLEO’s refuse to sign due to political liability, anti-gun bias, or for other reasons. When Congress enacted the NFA of 1934 (the law that regulates the transfer of machineguns and other NFA firearms) they specifically exempted corporations (and other non-human entities) from the CLEO signoff, fingerprint and photograph requirements. Fingerprint and photograph exemptions make sense — corporations don’t have fingerprints or faces — but exempting them from the CLEO signoff means that Joe Citizen must ask the local Po Po “mother may I” while Pinkerton (thinking back to 1934) can equip its men without the local CLEO having a say.
Sorry this ran a bit afield of the topic. Just figured it was useful to point out that there is already discrimination between corporations and citizens on the 2A front — just that in the case of 2A it runs the other way.
Corporate influence will be limited by the fact that no company wants to anger customers and no politician wants it to be known that he is in the thrall of (say) Goldman-sachs. Too much like reality.
Where this decision will matter is with mass organizations such as the NRA or labor unions which have lots of members and fellow-travelors. These organizations will now be free to tag politicians as friends or enemies right up to the election and use their own money to say so.
ArthurKirkland says:
I expect Gust Avrakotos’ “we’ll see” parable* (from Charlie Wilson’s War) to be especially apt to this decision; those who expect to benefit from it may be disappointed, those who are disappointed may benefit.
Some of the consequences will depend on legal refinements — tax treatment of expenditures for political speech as a business expense, for example — and others will depend on how the more-naked political jousting develops.
I, for one, think investment in (or development of) Democrat-friendly defense contractors and regulated industry participants would be a handy destination for money, time and effort.
——————————–
* Gust Avrakotos: There’s a little boy and on his 14th birthday he gets a horse . . . and everybody in the village says, “how wonderful, the boy got a horse.” And the Zen master says, “we’ll see.” Two years later, the boy falls off the horse, breaks his leg, and everyone in the village says, “How terrible.” And the Zen master says, “We’ll see.” Then, a war breaks out and all the young men have to go off and fight . . . except the boy can’t, ’cause his leg’s all messed up, and everybody in the village says, “How wonderful.”
Charlie Wilson: Now the Zen master says, “We’ll see.”
[Gust was attempting to warn about blowback from misadventures in Afghanistan -- and was issuing that caution a couple of decades ago. I guess we've seen.]
January 21, 2010, 4:46 pmWill Haselden says:
Eugene,
The ability of the “traditional” press to influence an election is a straw man in any discussion about the actual beneficial effect of money to a candidate or party. The genuine fear is that corporate money – and corporations indisputably have more money than do other entities in a capitalist society – can buy everything in excess in elections: television ads, blog ads, cool video production, and even great posters and buttons. Do you truthfully believe that a NYTimes endorsement is of equal weight as against a, say, $50 million dump by AIG or Goldman Sachs to a national candidate? Really? This is as activist as decision as the Court has made since Bush v. Gore, and potentially more damaging.
January 21, 2010, 4:48 pmNortheast Elizabeth says:
Tremendous piece, Prof. Volokh . . . thanks for tweaking the Times in the Times. Prof. Gora was also spot-on.
I wonder how popular Congress’ efforts to limit this decision will be. Or what those limits will be.
January 21, 2010, 5:02 pmProfessor Woland says:
Eugene,
Your post is a dramatic oversimplification of the practical effect of this decision. Whether or not Exxon itself is fearful of being demonized for its contributions is totally irrelevant (and the list of companies for which this would be a serious problem is probably no more than a half-dozen)–you are presuming perfect transparency about where corporate dollars are coming from and how they get to a candidate. You know this isn’t the reality–uncapped and unlimited corporate dollars will be “laundered” through any number of third party interest groups, PACs, etc.
January 21, 2010, 5:03 pmAlanW says:
The ruling makes me nervous and I think it’s at least overbroad.
In any case, I thought Eugene’s argument was unpersuasive and something of a tangent. The press gets singled out for special treatment in the constitution. Just because newspapers (for the time being) still make money on advertisements and subscriptions doesn’t change that – the press is simply different from other businesses.
January 21, 2010, 5:12 pmpc says:
I wonder what the intersection of Citizens United and Heller will look like? A corporation should have the individual right to keep and bear arms too. Do legal fictions not deserve to have the ability to defend themselves from home invaders?
January 21, 2010, 5:25 pmArthurKirkland says:
I suspect one group that will most regret this decision consists of corporations.
They may be required to work harder to keep and justify the benefits of corporate form, beginning relatively soon.
January 21, 2010, 6:41 pmDavid Barulich says:
How does this ruling impact expenditures by US domiciled corporations that are majority-owned by foreigners?
January 21, 2010, 6:52 pmNortheast Elizabeth says:
you are presuming perfect transparency about where corporate dollars are coming from and how they get to a candidate
They should have knocked out the transparency provisions too. A citizen can watch an ad, form an opinion and do additional Internet research if necessary. No need to know who is paying for it to decide whether it’s true.
But if you want transparency, make sure it applies to news and commentary shows too. I want an accounting of the source of every penny paid to Keith Olbermann and Chris Matthews by their corporate masters and sponsors — with full shareholder lists (names, addresses, phone numbers too). And make sure all this info is scrolled beneath Katie Couric’s and Brian Williams broadcasts for every second they are talking.
January 21, 2010, 8:26 pmEconGrad says:
I find it somewhat amusing that most of the people who find the ruling to be a good thing offer constitutional reasoning for why it is a good thing — and most of the people who opine about why it is a bad thing are generally whining about the effects of the ruling. If folks want to be taken seriously in debates of a constitutional nature, then it would seem they should offer reasons why the ruling is constitutionally unsound and forgo all of the Chicken Little antics.
For me the question is about whether or not corporations have 1st Amendment rights. If they do, the ruling is a victory for the Constitution. If they don’t, then it is wrongly decided. I don’t pretend to have a good grasp of the history behind the notion that “corporate speech” is protected, so I don’t have an informed opinion about whether or not corporations should enjoy 1st Amendment protections.
January 22, 2010, 10:29 amEconGrad says:
Whether or not corporations have guaranteed 2A rights is an open question. That aside, Congress has generally acted deferentially to corporations over flesh-and-blood citizens. Strongest case in point is that if I want to own a machine gun, I have to get a local chief law enforcement officer to sign the paperwork (who’s discretion is unilateral and cannot be compelled in court — except in rare states like Tennessee which have “shall sign” laws), I have to submit fingerprints and photographs, pay the $200 transfer tax, etc. The big stumbling block is the CLEO signoff. Many CLEO’s refuse to sign due to political liability, anti-gun bias, or for other reasons. When Congress enacted the NFA of 1934 (the law that regulates the transfer of machineguns and other NFA firearms) they specifically exempted corporations (and other non-human entities) from the CLEO signoff, fingerprint and photograph requirements. Fingerprint and photograph exemptions make sense — corporations don’t have fingerprints or faces — but exempting them from the CLEO signoff means that Joe Citizen must ask the local Po Po “mother may I” while Pinkerton (thinking back to 1934) can equip its men without the local CLEO having a say.
Sorry this ran a bit afield of the topic. Just figured it was useful to point out that there is already discrimination between corporations and citizens on the 2A front — just that in the case of 2A it runs the other way.
January 22, 2010, 10:38 amPublius999 says:
Corporate influence will be limited by the fact that no company wants to anger customers and no politician wants it to be known that he is in the thrall of (say) Goldman-sachs. Too much like reality.
Where this decision will matter is with mass organizations such as the NRA or labor unions which have lots of members and fellow-travelors. These organizations will now be free to tag politicians as friends or enemies right up to the election and use their own money to say so.
January 24, 2010, 11:57 pm