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The money's where the mouth is

by Mytheos Holt, published

In the aftermath of Citizens United v. FEC, the most recent (and most controversial) decision released by the Supreme Court this year, there have been a variety of highly predictable reactions. From the Right, one hears the incessant rhythm of jubilation over the fact that the corporate world will be liberated from its forced silence, with the prospect of union abuse either ignored or rhetorically shoved under the rug. From the Left,  as well as from some of my fellow contributors on this site, one hears the premature obituary of American Democracy, wailed with lamentations over the supposedly oligarchic bias of the Supreme Court’s “activist” conservative wing. And, naturally, in the realm of politics, there is widespread speculation as to what the effects of Citizens United will be, especially given the contentious coming election.

The first two reactions are as premature, and as Constitutionally unfounded, as they are predictable. Despite the fact that the opinion does explicitly open the way for further corporate involvement in the political process, as Lyle Denniston of SCOTUSBlog notes, “The parts of the federal law that the Court struck down, barring corporations from using their own in-house cash to spend on politics, are written to apply equally to labor unions.  And there are sections of the Kennedy opinion that seem to treat corporations and labor unions interchangeably.  For example, the most important single conclusion the Court draws is that the identity of the political speaker (spending money on politics is, to the Court, speaking) cannot be the basis for restrictions on their independent political spending. "

And bravo. Contrary to the charge of “activism” by the dissenters, at the point where one concedes (as my fellow contributor does in his article) that spending money is a form of political expression, it makes no more sense under the first and fourteenth amendments to regulate how much a single entity can spend than it does to regulate how loudly someone can shout their opinion from the rooftops, even though we would obviously recognize the latter as a violation of free speech. The right to free speech, and the autonomy of corporations, are rights which have been recognized by the United States Constitution and the Supreme Court since at least the Constitution’s ratification in the case of free speech, and since the case of Dartmouth College v. Woodward (decided in  1819) in the case of corporate autonomy.  As such, the only “activism” involved in the case of Citizens United lies in the case it refutes – namely, the 19-year-old precedent of Austin v. Michigan Chamber of Commerce, which took the constitutionally irrelevant and politically controversial notion that “immense aggregations of wealth” have “corrosive and distorting effects” and read it rather ostentatiously into the Constitution.

The truth of the matter is that Citizens United does not obviously benefit either the Left or the Right side of the spectrum, given that its beneficiaries (corporations and unions) are politically agnostic at best and avowedly Left-leaning at worst. Corporate donations are notoriously unpredictable (some of the largest donors to Democratic Presidential candidates in 2008 came from the corporate world), and unions are acknowledged partners of Democratic politicians. As such, the third concern with the decision – diagnosing its effect on California’s upcoming elections –is trickier than it first appears.

Not that you would know it from reading the Los Angeles Times. In a blog entry dated January 22, 2010, Times blogger Shane Goldmacher reports that, while Democratic officials have become increasingly pessimistic, Republican responses to the decision are positively jubilant. To quote GOP strategist Kevin Eckery, when it comes to Barbara Boxer’s Senate race especially, Citizens United has “taken what might have been a two-dimensional chess game and made it a three-dimensional game." Given this, it seems only fair for this author to revise some previous analysis on the subject of Boxer’s race.

If one assumes, as the GOP seems to be doing, that the corporate contributions of California’s native companies are likely to favor the Republicans (not an unreasonable assumption, once you discount the entertainment industry), then one element of Boxer’s advantage over potential challengers evaporates – that is, her well-heeled individual contributors in Hollywood are suddenly balanced out by the wealthy corporate contributors which potential GOP challengers can pick up. Granted, money is not proportional to votes, and Boxer’s larger advantage still lies with the fact that most of California’s major population centers tend Democratic, but as it is, Citizens United may at least have made the fight more winnable, assuming enough Republicans can figure out how to appeal to the massive collective wallets which have just been opened.


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