To all my Facebook friends that love to comment or ask questions without actually reading my articles, please don’t bother to do so. I won’t respond because your words are probably irrelevant to what I’m going to say or have already been answered. I have to lead with this request because only the first couple sentences of a post will show up on Facebook. Sorry for the distraction.
The public reaction to Citizens United v. Federal Election Commission , 558 U.S. 50 (2010), is another shining example of what’s wrong with political discourse in America, and as such, the soundest argument ever made won’t sway people’s views. Americans view the decision as favoring Republicans, which means Republicans love it, and Democrats hate it. As with most political issues, the “why” of the decision is irrelevant to most of us. We believe what we want to believe, logic be damned! Nevertheless, I’m going to give my take on it, hoping that only those that actually care about the “why” will respond (and also hoping I don’t violate item #3 in the list to which I linked in the prior sentence). A man can dream, can’t he?
What pains me the most about those that comment on Citizens United isn’t their substantive viewpoint. Reasonable minds can disagree, and – contrary to what most Americans appear to think – with the issue in play, there’s really no objectively correct answer. This isn’t a scientific question as much as it is a philosophical question, and that’s a key point lost on everyone. I’m not talking about methods for constitutional interpretation, though, so I promise you won’t be getting a lecture on that.
Aside (for context): While there is always a “political” conflict among members of the Supreme Court, it’s not – again, contrary to what most Americans appear to think – a Republican v. Democratic conflict. Instead, it’s a conflict as to how to interpret the Constitution. While there’s clearly a favorite method among each of the political parties, those favorites were picked for historical reasons, and those choices have probably influenced party positions more than the party positions influenced the choice if method. The point of this aside is simply to say that, while there’s a serious philosophical divide between the justices, this isn’t a case of favoring one political party over the other, so the justices really aren’t “playing politics.” I’ve been outspoken in my criticism of various Supreme Court cases (Eldred v. Ashcroft, anyone?), and it’s okay to do that, but we all really need to get past this political scapegoating of the Supreme Court. That scapegoating is motivated by our own political zealotry more so than by knowledge or reason.
So, what kinds of cases get to the Supreme Court? As you probably know, the Supreme Court is free to ignore most cases brought to it. That is, you usually have to request permission for your case to be heard. With the overwhelming number of cases requesting Supreme Court review, a small percentage (currently about 0.8%) actually gets heard.
Sometimes, cases before the Supreme Court are easy, and the result is a unanimous (or near-unanimous) decision. One of the many reasons a case might be easy, yet the Supreme Court has granted permission for it to be heard anyway, is that the case is very important, dealing with a Constitutional right. If the lower courts got it wrong, that’s all the more reason the Supreme Court will take it. For example, in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), Jerry Falwell sued Hustler magazine for an advertisement in which, among other things, Falwell was portrayed as having engaged in a drunken sex with his mother in an outhouse. So, what was at stake? On the one hand, you had the fundamental, First Amendment right to freedom of speech, a right that prevents democracy from becoming a sham by allowing us to complain whenever we think it’s appropriate.
On the other hand, you had a public figure whose feelings were hurt.
Needless to say, the Supreme Court ruled unanimously in favor of a magazine that probably all of the justices found distasteful. Why? Simply put, free speech is pretty damned important. Their personal views, political leanings, and even methods of constitutional interpretation were irrelevant. This was just too easy, and Falwell’s loss in the case was total.
Another great example is a bit more recent. In United States v. Jones, 565 U.S. ___ (2012), the police exceed the scope of their warrant by monitoring a suspect’s movements by way of a GPS device installed in his wife’s car without their knowledge (that is, without the suspect’s knowledge or the wife’s knowledge). So, what was at stake? On the one hand, you had the fundamental, Fourth Amendment right to be free from unreasonable searches and seizures, a right that protects us from intrusions into our privacy and lessens the ability of the government to plant evidence in places where such evidence would be most damning.
On the other hand, the cops really wanted to get their guy.
Again, the Supreme Court ruled 9-0 in favor of the suspect. It was another really easy case, and so the loser (i.e., the cops) suffered total loss, just like Falwell.
To summarize, cases involving fundamental, constitutional rights pitted against some lesser interest are easy and usually result in unanimous or near-unanimous rulings by the Supreme Court. It’s also important to remember that the loser in both cases suffers total loss. It’s just the way things usually go in Constitutional cases.
Citizens United Is Not an Easy Case
Sticking with this theme, what about constitutional cases involving two Constitutional rights in conflict with one another? Which one wins? If a case arose in which the right to free speech and the right to be safe from unreasonable searches and seizures, which would you choose? This question is impossible to answer without me giving you a set of facts, so don’t try. My point is that, considering one side is most likely going to suffer total loss, and that “side” is a Constitutional right, there’s a lot at stake here, isn’t there?
So how do you strike that balance?
If that seems like a tough question, it’s because it is, and that’s no minor point. I’ll revisit it later. For now, think of this as a pendulum. If we swing it to the right, free speech wins. If we swing it to the left, the right to vote wins. (Do you see that I did there?)
What does the Constitution say about how we should handle this? Let’s say we were able to bring the Constitution to life as a human being and ask him, Fred Constitution, how we should handle Citizens United. Here’s how that conversation would go.
Justice Kennedy: Hey, Fred. Glad you could stop by. We have a case and need your help.
Fred Constitution: Sure. I’ll do what I can.
JK: Well, these guys are trying to dilute the right to vote . . .
FC: Are you kidding? You can’t do that! The existence of the right to vote defines democracy!
JK: Oh, sure. That’s obvious. So, we can infringe the right to speak one’s . . .
FC: Whoa! Stop right there. How dare you suggest that! The right to speech is in the First Amendment. The first one! Without free speech, all the other rights are a sham! It defines the American concept of democracy!
JK: Yeah, so it’s important, but it’s going to trample over the right to vote, and . . .
FC: Why aren’t you listening to me, Tony? Voting is a sacred right, and you’re going to allow it to be trampled? Who appointed you to the bench?
JK: Wait, you’re not listening. Political speech is the problem . . .
FC: Political speech is a problem? Are you out of your mind? That’s the entire point of the Free Speech clause. Sure, it’s a broad right, but ultimately, its purpose is to protect political speech!
JK: You’re not helping.
FC: That’s not possible. They’re my rules.
This would go on until Justice Kennedy put a gun to Fred’s head or to his own. Either way, someone’s coming out of this maddening conversation dead. In other words, the Constitution, by itself, isn’t going to help. It tells us what’s really important, but it doesn’t tell us how to balance those things when they come into conflict. Moreover, it’s become somewhat accepted in legal circles that no one constitutional right is more important than another, so as interpreted, the Constitution would just say, “Both are equally important. You’re screwed either way.”
Why do I feel the Supreme Court was correct in choosing free speech over the right to vote?
The key is that the right to free speech, while no more important than any other constitutional right, is more sensitive to infringement than the others. That is, if we take away (or just chip away) the right to free speech, the effect will be permanent, while taking away (or chipping away) at other rights can be only temporary thanks to, not surprisingly, our continued right to free speech. That’s confusing as hell, so let’s try a couple of examples.
Scenario #1: It’s September 12, 2001, and we’re all pissed off at Muslims because 19 out of 1.5 billion of them participated in a terrorist attack on United States soil. What do we do? We repeal the Fifteenth Amendment. The next day, September 13, 2001, Congress passes a (now-Constitutional) law saying, “Muslims can’t vote.” So what happens on September 14, 2001? Every single Muslim American says, “Hey, I’m a US citizen! Why can’t I vote?” Because we’re angry, and by assumption our emotion is getting better of us, we tell them to go to hell, and nothing changes. However, on September 15, and on every day after that, we still hear them complaining, until finally we come to our senses and repeal the law.
Scenario #2: It’s September 12, 2001, and we’re all pissed off at Muslims because 19 out of 1.5 billion of them participated in a terrorist attack on United States soil. What do we do? We strike the Free Speech clause from the First Amendment. The next day, September 13, 2001, Congress passes an unconstitutional law saying, “Muslims can’t vote,” and a now-Constitutional law saying, “Muslims can be executed for complaining about the US government.” (Let’s just ignore the Eighth Amendment’s prohibition against cruel punishment for now.) So what happens on September 14, 2001? Every single Muslim American says . . . nothing. Why? Because without the right to free speech, any Muslim that opens his or her mouth will be beheaded. By September 14, 2001, the issue is out of sight and out of mind, and may not ever be corrected. Do Muslims still have a Constitutional right to vote? Yes, but it doesn’t matter. They can’t complain when we take it from them.
Clearly, these are extreme and over-simplified examples, but given enough time, even the infringement of our Constitutional rights become accepted (see, e.g., that our economic rights that were devastated by FDR’s New Deal, and most of you don’t seem to care because you’ve always lived like that). The only thing that could possibly stop this atrocity is our right to speak our minds. The right to dissent prevents us from ever losing sight of the injustice. As long as we can speak, we can remind our leaders and each other of our rights, or at least of what our rights should be. All of these rights are important, but free speech prevents them from being reduced to a sham.
To further strengthen this point, it’s advisable to note that the Framers of the US Constitution knew what they were doing. When they identified a potential problem – for example, King George loving to punish his critics – they didn’t just address the problem directly. They knew that every government could cleverly get around a specific restriction, including the limited nature of federal power (see my New Deal comment). In other words, as an example, the purpose of the Free Speech clause was to protect political speech, but having the “right to political speech” wouldn’t be enough. The government would find away to punish political speech by characterizing it as non-political. Accordingly, they had only one solution: grant a broad right of protecting all speech. That way, while we’re bickering over whether Larry Flynt can say “fuck” in Hustler magazine, the right to political dissent would be safely hidden at the center of the free speech right. Put another way, as long as we can say “fuck,” we can certainly say, “fuck the President.”
Citizens United dealt with political speech that was directly under attack. The Court had to protect it. At the risk of trivializing the simultaneous attack on our right to vote, I’ll mention that the attack on our right to vote was indirect. No one was being told, “You can’t vote anymore.” This is yet another reason the Court should have gone the way it did.
Of course, reasonable, informed minds could disagree, but not on an objective level. This is why I said that the real issue is more philosophical than scientific. You can’t add up a bunch of numbers, solve a differential equation, and calculate whether I’m right or you’re right. This is a matter of what you subjectively think is more important: protecting the right to vote or protecting the right to free speech. I’ve formed my opinion; feel free to form and share yours.
One thing you shouldn’t be doing, though, is claiming this case was trivial, and that’s the first lesson of this post. This was a difficult balancing act to perform, and you shouldn’t be trivializing that difficulty.
You might be asking, “But Rob, why do we have to swing that pendulum so hard? Why couldn’t the court just nudge it a little, letting free speech win, but only a little bit? After all, the pendulum is just a metaphor.”
The problem is in how the Supreme Court works. When you request their permission to appeal your case, you submit questions for them to answer (the “Questions Presented”). These are questions that have to be phrased such that the answer is “yes” or “no.” So, when answering the questions you’ve presented to them, the court, in a very real sense, answers with either a “yes” or “no.” Of course, I’m oversimplifying a bit – the PDF of the Citizens United case is 183 pages long – but it’s certainly true that while their analysis justifying their yes/no answer may be long, and may be helpful in predicting the outcome of future cases, ultimately it answers a simple question in a single case. This results in a massive swing of the pendulum in the winning direction.
This could be mitigated by way of the Supreme Court adding hypothetical situations, going outside the case on hand to explain how the case should be applied in the future to other fact patterns. This would be an unrealistic expectation to have of the Court. There are simply too many hypothetical cases for the court to address, some of which may never arise at all, and even the known important ones would take up too much space. (If you support that idea anyway, I guess a 183-page document is too short for you, so don’t complain that my posts are too long.) Also, keep in mind that many of these hypothetical cases are based on fact patterns the court couldn’t necessarily anticipate. Their decision in the present case was necessary in order for these new circumstances to come into existence.
The result in Citizens United is that the right to vote in this country has been trampled, and it’s shameful that those that support the decision don’t seem to recognize that. The First Amendment trampled on it, so the offense taken by those opposing the decision is greatly overblown, but it has been trampled, and it’s a pretty important right, so we really shouldn’t be celebrating our free speech victory. So, now we have a mess. What can we do about it?
Well, despite the average American’s (unfounded) accusations that the Supreme Court plays politics, the truth is that each of the nine Justices is well aware of what’s happened. They see the damage done to the right to vote, and you can bet your ass that at least a couple of majority justices are chomping at the bit for a case that will allow them to swing the pendulum back towards the left drain some of the water from our diluted voting rights. (It may surprise you to know that I believe Alito, the one that shook his head during President Obama’s Citizens United rant, is one of those justices.)
This will happen.
The ACLU and others will look at the current state of things and say,
Okay, Citizens United led to 7 bad things: A, B, C, D, E, F, and G. If we took away C and F, would that be in violation of Citizens United? In other words, would A, B, D, E, and G be enough to provide for an adequate avenue for political speech even without the presence of C and F? Yes? Then let’s sue!
The result would be a swing of the pendulum back to the left. While the sensitivity of free speech would always give it an advantage, thus leaving the pendulum hanging a little bit to the right, the result of subsequent Supreme Court cases should undo the massive damage done to voting rights. Of course, everyone will still be left unsatisfied, but only because they’re giving way to political zealotry without respecting that both sides of the argument have an important interest at heart, and these are interests we all share.
This is the second lesson I want you to take away from this post: The Supreme Court will eventually strike a balance, because there are two fundamental rights at stake.
Aside: As I always reminded the judges in my moot court competitions in law school, constitutional rights “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Miller v. California, 413 U.S. 15, 24-25 (1973). I loved this case because it was about pornography, which I found amusing to cite in a formal discussion on constitutional rights, but it’s an important point nonetheless. Shit happens, and there’s no way to avoid it, but if you’re patient, the Supreme Court will eventually set things straight. Usually, it does, especially where the First Amendment is concerned.
What could A, B, C, D, E, F, and G be in the example above? I’m not confident I know all the aspects to this issue that those letters could represent, but one obvious example is transparency. Behind every dollar spent must be the name of a human being (or several). If company A donates $1,000, then its shareholders should be named. If the shareholder of company A is company B, then company B’s shareholders should be named. We could play this game ad infinitum, but eventually, at least one human name will have to be disclosed for every company in the chain. Companies can own companies, but eventually that chain of ownership must end with a human being (or several). Every human being with an ownership interest anywhere in the chain could be exposed, though I could see alternate ways to deal with publicly traded companies “owned” by thousands of people.
Would this chill free speech? Yes, a bit – people might be less willing to speak politically if they knew they’d be identified – but free speech isn’t absolute, and undoing some of the damage done to the right to vote would certainly be a noble cause justifying that slight infringement on free speech. Remember, this is a balancing act.
I want to remind you of the very difficult question I raised earlier:
So how the hell do you strike that balance? (The “balance” in question is between two Constitutional rights.)
If it’s such a tough question, why are you so angry/happy at the outcome? To those that support the decision, I remind you that your right to vote has been seriously diluted, even if you’re a Republican. Corporations don’t speak for you as individuals, even if you’re one of their employees. In such a case, your financial contribution to a company (through your hard work) might be used to support causes you oppose. Why is that anything to cheer?
To those that oppose the decision, the Supreme Court would like to say, “You’re welcome,” because they just protected not merely your First Amendment right to free speech, but your right to free political speech, which is the whole point of having a right to free speech in the first place. Why are you so enthusiastic about giving up that right? Is it because you perceive this particular speech to oppose your own? That’s called hypocrisy, and if that’s the way you think, you really don’t support free speech, so I couldn’t care less what you think. That’s a very un-American way to think.
I place everyone who claims this was an easy decision (whether good or bad) falls into one or more of the following three categories.
1. Stupid (there are plenty of people not capable of grasping these concepts; it’s not their fault);
2. Ignorant (you haven’t educated yourself on the case, but insist on talking about it like you have); or
3. Dishonest (i.e., a political zealot, industry member, or other person who has something to gain directly from the outcome of the case).
As an example of category #2, many of you complain that Citizens United 1) gave personhood to corporations; or 2) gave free speech rights to corporations. Those are ignorant positions. Corporate personhood was first recognized in 1819 in Trustees of Dartmouth College v. Woodward, and free speech rights were first recognized when my mother was in first grade, with the relevant test for whether speech was “corporate” in character being created two years before A Flock of Seagulls released “I Ran (So Far away)”). Those that have ever uttered either of those claims squarely fit in category two, leaving them with no justification for taking offense to the decision.
As for category #3, if you truly understand the issues and consequently have formed a knowledgeable opinion on that matter, that’s great, but if you’ve done so and are still oversimplifying what’s at stake or predicting gloom and doom for the future, that suggests you’re in category three.
People falling in either category #2 or #3 are part of the problem with public discourse, but category #3 people are helping to maintain that sad state of affairs, making them bad people as far as I’m concerned. There’s too much at stake here for you to make your money by maintaining America’s level of ignorance. You’re a bad man. A very, very bad man.
Babu would not approve.
This was not an easy case, and it was probably correctly decided, but eventually, things should level out to some extent. You need to be patient and stop acting as if the system has failed you.
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