The Citizens United Decision

Yesterday's Supreme Court decision in the Citizens United case would seem to have a major impact in the 29th. By a 5-4 decision, the Court ruled that limits on third-party advocacy in elections are unconstitutional.

This means two things. First, corporations are now free to sponsor political ads. Second, advocacy groups will no longer have to stop advertising 30 days prior to primaries, and 60 days prior to general elections.

There are all kinds of dire outcomes being predicted, mainly on the assumption that corporations will flood the market with advertising and "buy" candidates. This may happen, but I doubt it, for a few reasons.

First, corporations already get what they want from Congress, for the most part. They have a well-oiled machine working to get Republicans and Democrats to pass legislation favorable to their interests, often to the detriment of you and me. The recent banking crisis, which arose in most part from bi-partisan deregulation, and the lack of a serious legislative response, is a prime example.

Second, ads are a blunt instrument, often wielded clumsily and ineffectively. We've seen that in the 29th with ads from advocacy groups like Advocates are often so wrapped up in their little advocacy worlds that they miss the bigger picture, and produce ads that are shrill or grating. Perhaps corporations will be able to hire consultants to slip their message in without us stupid voters noticing, but if there's reasonable disclosure of sponsorship in advertising, many will be able to consider the source.

Finally, corporations tend to tread carefully when dealing with controversial political topics. Most hotly contested elections are decided by a few points. Do corporations really want to risk losing customers by alienating almost half of their customer base during an election? It's much better for them to use PAC contributions to influence legislation behind the scenes than to commit to a full-on PR campaign. (This point might be addressed in part by the use of third-party groups like the Chamber of Commerce to do corporate advertising, but consumers can still speak with their pocketbooks in a lot of cases.)

In addition to these considerations, there's a practical one in the 29th: we're already oversaturated with political ads in Rochester around election time. In the Massa/Reed race, if corporations come in on Reed's side, we can expect some serious expenditures from unions for Massa. There are only so many hours in the day for ads, and, more importantly, voters only have a very finite tolerance for political ads. We're going to reach a saturation point very quickly.

From the standpoint of principle, I don't know if it's healthy for us to treat corporations in the same way that we treat persons under the law. But I've always thought that campaign finance law was on the edge of a First Amendment violation, and I don't see how this ruling was completely out of line or unexpected. Transparency -- telling us quickly and accurately who's spending money to help whom -- is far more important than restricting spending.


Very interesting take on the case. Any word on other potential candidates?

No, I think it's Reed v Massa.

I can't agree. Massachusetts has clearly demonstrated how public opinion can be changed and masses of "independents" can be moved off the dime by the paid media's ability to "enhance" the image of a candidate who is essentially the opposite of what the people have traditionally desired. If the past ten years has shown us anything it's that the Big Lie and Double Speak are effective and that Americans are as susceptible as any to demagoguery.

Why is it that most people buy Cheerios rather than the store brand? Advertising has proven itself to be very effective, and sophisticated advertising extremely powerful. Elections, as we have just seen can be swung by stealth and a well-timed surge. The loss of the the 30 and 60-day rule is monumental.

Can anyone deny that the SCOTUS decision was every bit a political decision as was Bush v. Gore? It is a GOP decision. Others have pointed out that now, in a small market, corporate (almost entirely GOP) interests can now flood a small media market with ads by simply buying up all available time. If the GOP is really after Massa's head, then this decision pretty much hands it to them. I love the guy but I can't see how he could compete with the energy, insurance and pharma industries if they decide to go after him.

The only long-term solution that I can see is a revision of the concept of a corporation's rights as being essentially those of a natural citizen. Justice Stevens alludes to it in his minority opinion. The constitution doesn't in any way support the concept, any more than it supports the filibuster. The Democrats have ten months to affect some kind of legislative change. We, the people, may never get another chance.

I agree that mass opinion is easily moved by advertising, that misleading ads have proven effective, and that this opinion is the product of a conservative court engaging in a bit of judicial activism.

I will be surprised if corporations will be able to buy up all the political ads around election time. My understanding is that local TV stations informally reserve blocks of time for all candidates who can afford ads, so that one can't buy everything out. Since the airwaves are a finite public resource, the FCC can and should regulate provisioning of political ads, if the informal measures don't work out.

On the point about corporations, I'm leery, too, but consider this set of questions from Glenn Greenwald and see if you feel the same way after trying to answer them:

I still think that upholding the First Amendment is more important than the possible bad outcomes from this decision.

I may be wrong, but I think that corporations were invented after the Constitution was written. Their predecessors were protected by the Crown and common law. My understanding is that the purpose of a corporation is to produce profits which are then shared by certain individuals. The idea that such an entity has human rights under the Constitution seems absurd to me. True, corporations need protections and that's what laws can provide.

Greenwald brings up problems that would never be allowed to exist, given the social, economic and political importance of corporations. If they were, some other entity would be created to avoid them. Giving corporations the rights of natural people, mostly through case law, has in fact allowed them to commit abuses of a magnitude that no individual could commit.

Greenwald's examples can be countered easily enough. Suppose, for example, AT&T, AIG, Merck or Goldman were drafted into the militia. Or imprisoned for one of its felonies? Oh, I forgot, they have limited liabilities. I.e., they were designed to benefit a group of people, and to shield them from individual and group responsibility. Unlike the rest of us, for example, when they go bankrupt their principals can descend under golden parachutes to ordinary citizenhood. When people go bankrupt, they end up broke. A corporation just dissolves, leaving lower level employees and creditors holding the bag. After all, it has a right to autonomy and privacy.

The majority opinion in Citizens United makes the claim that we humans have the right to hear the opinions of all parties, including those of corporations! It's as though without the ability to spend unlimited amounts at any time to express their views, they would become as muted as a real citizen in the forum of ideas. This decision, which ignores all precedents, is an abomination.

You might want to read Greenwald's follow-up post,

where he makes the point that all of the justices recognized that corporations have free speech rights. The question was whether, in this particular instance, there was a compelling reason to limit those rights.

Also, the idea of another entity being created to address the issues that Greenwald raises doesn't address the question. Say we did create some kind of non-profit entity that was different from a corporation, so we could limit the rights of for-profits and leave non-profits alone. Couldn't a corporation just donate to the non-profit entity of their choice to have that non-profit do the advocacy for them?

Right, Greewald is agitated. I suggest reading Stevens then Greenwald.