[First Amendment attorney Glenn Greenwald finds liberal reactions to yesterday’s ruling overblown, points out that America can hardly get more corporate-dominated than it already is, and reminds us that the ruling is also good news for labor unions and advocacy groups like the ACLU and MoveOn.org. Finally he expresses the hope that we can deal with the problem of corporatism through a completely constitutional reform we really need: meaningful public financing of campaigns.]
The Citizens United decision
The Supreme Court yesterday, in a 5-4 decision, declared unconstitutional (on First Amendment grounds) campaign finance regulations which restrict the ability of corporations and unions to use funds from their general treasury for “electioneering” purposes. The case, Citizens United v. FEC, presents some very difficult free speech questions, and I’m deeply ambivalent about the court’s ruling. There are several dubious aspects of the majority’s opinion (principally its decision to invalidate the entire campaign finance scheme rather than exercising “judicial restraint” through a narrower holding). Beyond that, I believe that corporate influence over our political process is easily one of the top sicknesses afflicting our political culture. But there are also very real First Amendment interests implicated by laws which bar entities from spending money to express political viewpoints.
I want to begin by examining several of the most common reactions among critics of this decision, none of which seems persuasive to me. Critics emphasize that the Court’s ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it’s not really relevant. Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes.)
One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like. If the Constitution or other laws bar the government action in question, then that’s the end of the inquiry; whether those actions produce good results is really not germane. Thus, those who want to object to the Court’s ruling need to do so on First Amendment grounds. Except to the extent that some constitutional rights give way to so-called “compelling state interests,” that the Court’s decision will produce “bad results” is not really an argument.
More specifically, it’s often the case that banning certain kinds of speech would produce good outcomes, and conversely, allowing certain kinds of speech produces bad outcomes (that’s true for, say, White Supremacist or neo-Nazi speech, or speech advocating violence against civilians). The First Amendment is not and never has been outcome-dependent; the Government is barred from restricting speech — especially political speech — no matter the good results that would result from the restrictions. That’s the price we pay for having the liberty of free speech. And even on a utilitarian level, the long-term dangers of allowing the Government to restrict political speech invariably outweigh whatever benefits accrue from such restrictions.
I’m also quite skeptical of the apocalyptic claims about how this decision will radically transform and subvert our democracy by empowering corporate control over the political process. My skepticism is due to one principal fact: I really don’t see how things can get much worse in that regard. The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin: “banks own” the Congress). Corporations find endless ways to circumvent current restrictions — their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold — and while this decision will make things marginally worse, I can’t imagine how it could worsen fundamentally. All of the hand-wringing sounds to me like someone expressing serious worry that a new law in North Korea will make the country more tyrannical. There’s not much room for our corporatist political system to get more corporatist. Does anyone believe that the ability of corporations to influence our political process was meaningfully limited before yesterday’s issuance of this ruling?
I’m even more unpersuaded by the argument — seen in today’s New York Times Editorial — that this decision will “ensure that Republican candidates will be at an enormous advantage in future elections.” What evidence is there for that? Over the past five years, corporate money has poured far more into the coffers of the Democratic Party than the GOP — and far more into Obama’s campaign coffers than McCain’s (especially from Wall Street). If anything, unlimited corporate money will be far more likely to strengthen incumbents than either of the two parties (and unlimited union spending, though dwarfed by corporate spending, will obviously benefit Democrats more). Besides, if it were the case that this law restricts the ability of Republicans far more than Democrats to raise money in election cycles, doesn’t that rather obviously intensify the First Amendment concerns?
Then there’s the always intellectually confused discussions of stare decisis and precedent. It’s absolutely true that the Citizens United majority cavalierly tossed aside decades of judicial opinions upholding the constitutionality of campaign finance restrictions. But what does that prove? Several of the liberals’ most cherished Supreme Court decisions did the same (Brown v. Bd. of Education rejected Plessy v. Ferguson; Lawrence v. Texas overruled Bowers v. Hardwick, etc.). Beyond that, the central principle which critics of this ruling find most offensive — that corporations possess “personhood” and are thus entitled to Constitutional (and First Amendment) rights — has also been affirmed by decades of Supreme Court jurisprudence; tossing that principle aside would require deviating from stare decisis every bit as much as the majority did here. If a settled proposition of law is sufficient repugnant to the Constitution, then the Court is not only justified, but required, to uproot it.
Ultimately, I think the free speech rights burdened by campaign finance laws are often significantly under-stated. I understand and sympathize with the argument that corporations are creatures of the state and should not enjoy the same rights as individuals. And one can’t help but note the vile irony that Muslim detainees have been essentially declared by courts not to be “persons” under the Constitution, whereas corporations are.
But the invalidated speech restrictions do not only apply to Exxon and Halliburton; they also apply to non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws. 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?
What is overlooked in virtually every discussion I’ve seen over the last 24 hours is how ineffective these campaign finance laws are. Large corporations employ teams of lawyers and lobbyists and easily circumvent these restrictions; wealthy individuals and well-funded unincorporated organizations are unlimited in what they can spend. It’s the smaller non-profit advocacy groups whose political speech tends to be most burdened by these laws. Campaign finance laws are a bit like gun control statutes: actual criminals continue to possess large stockpiles of weapons, but law-abiding citizens are disarmed.
In sum, there’s no question that the stranglehold corporations exert on our democracy is one of the most serious and pressing threats we face. I’ve written volumes on that very problem. Although I doubt it, this decision may very well worsen that problem in some substantial way. But on both pragmatic and Constitutional grounds, the issue of corporate influence — like virtually all issues — is not really solvable by restrictions on political speech. Isn’t it far more promising to have the Government try to equalize the playing field through serious public financing of campaigns than to try to slink around the First Amendment — or, worse, amend it — in order to restrict political speech?
There are few features that are still extremely healthy and vibrant in the American political system; the First Amendment is one of them, and the last thing we should want is Congress trying to limit it through amendments or otherwise circumvent it in the name of elevating our elections. Meaningful public financing of campaigns would far more effectively achieve the ostensible objectives of campaign finance restrictions without any of the dangers or constitutional infirmities. If yesterday’s decision provides the impetus for that to be done, then it will have, on balance, achieved very positive outcomes, even though that was plainly not its intent.
UPDATE:
I want to add one other point just to underscore how irrational, discriminatory and ineffective these political speech restrictions are. The invalidated statute at issue here exempted media corporations — such as Fox and MSNBC — from these restrictions, since the Government obviously can’t ban media figures from going on television and opining on elections (the way they do all other corporations). But as Eliot Spitzer noted when urging the Supreme Court to strike down this law (h/t David Sirota), what possible justification is there for allowing News Corp. and GE to say whatever the want about our elections while banning all other corporations (including non-profit advocacy groups) from doing so?
As an elected official who often tangled with wealthy corporations, I recognize that there is a superficial appeal in the prospect of being able to silence their political voices. Of course that is precisely why the First Amendment protects them and why I find myself sympathetic to the First Amendment absolutists in this case. What distinguishes what Citizens United did and what Bill O’Reilly on Fox News — Rachel Maddow on MSNBC — does every day? Fox and MSNBC are corporations bombarding the airwaves with political rhetoric, from the right and left, that is as close to “electioneering communications” as anything I can imagine. The McCain-Feingold statute excluded “media companies” from its limitations, a distinction that makes no logical sense. The constitutionality of Citizens United’s speech should have nothing to do with what else may or may not go on at the corporation it is part of.
That’s what restrictions on political speech almost always do: whether intended or not, they favor the views of certain factions while suppressing others. In this case, it allowed the views of News Corp., GE, and Viacom to flourish (through their ownership of media outlets) while preventing the ACLU and Planned Parenthood from speaking out. As Spitzer said: that is precisely why the First Amendment bars such government efforts to restrict political speech. It is virtually always best — and Constitutionally mandated — for the Government to stay out of the business of trying to restrict and regulate political advocacy.
Well, I’m usually with Glenn, but his “doubts” about the impact this ruling will have I think are highly speculative. There’s one thing I never doubt…the lengths that corporations and special interests will go to, and the money they will spend, to influence government. And as Erwin Chemerinsky writes in today’s Los Angeles Times, how is overturning several precedents and an act of Congress not a case of judicial activism. THAT criticism is not overblown at all.
It is definitely judicial activism, although the right thinks they own that phrase and it only applies to outcomes they don’t like!
Granny D’s two cents: (http://readersupportednews.org/opinion/75-politics/803-on-campaign-finance-reform)
Ten years ago, I walked from California to Washington, D.C. to help gather support for campaign finance reform. I used the novelty of my age (I was 90), to garner attention to the fact that our democracy, for which so many people have given their lives, is being subverted to the needs of wealthy interests, and that we must do something about it. I talked to thousands of people and gave hundreds of speeches and interviews, and, in every section of the nation, I was deeply moved by how heartsick Americans are by the current state of our politics.
Well, we got some reform bills passed, but things seem worse now than ever. Our good government reform groups are trying to staunch the flow of special-interest money into our political campaigns, but they are mostly whistling in a wind that has become a gale force of corrupting cash. Conditions are so bad that people now assume that nothing useful can pass Congress due to the vote-buying power of powerful financial interests. The health care reform debacle is but the most recent example.
The Supreme Court, representing a radical fringe that does not share the despair of the grand majority of Americans, has today made things considerably worse by undoing the modest reforms I walked for and went to jail for, and that tens of thousands of other Americans fought very hard to see enacted. So now, thanks to this Court, corporations can fund their candidates without limits and they can run mudslinging campaigns against everyone else, right up to and including election day.
The Supreme Court now opens the floodgates to usher in a new tsunami of corporate money into politics. If we are to retain our democracy, we must go a new direction until a more reasonable Supreme Court is in place. I would propose a one-two punch of the following nature:
A few states have adopted programs where candidates who agree to not accept special-interest donations receive, instead, advertising funds from their state. The programs work, and I would guess that they save their states more money than they cost by reducing corruption. Moving these reforms in the states has been very slow and difficult, but we must keep at it.
But we also need a new approach––something of a roundhouse punch. I would like to propose a flanking move that will help such reforms move faster: We need to dramatically expand the definition of what constitutes an illegal conflict of interest in politics.
If your brother-in-law has a road paving company, it is clear that you, as an elected official, must not vote to give him a contract, as you have a conflict of interest. Do you have any less of an ethical conflict if you are voting for that contract not because he is a brother-in-law, but because he is a major donor to your campaign? Should you ethically vote on health issues if health companies fund a large chunk of your campaign? The success of your campaign, after all, determines your future career and financial condition. You have a conflict.
Let us say, through the enactment of new laws, that a politician can no longer take any action, or arrange any action by another official, if the action, in the opinion of that legislative body’s civil service ethics officer, would cause special gain to a major donor of that official’s campaign. The details of such a program will be daunting, but we need to figure them out and get them into law.
Remarkably, many better corporations have an ethical review process to prevent their executives from making political contributions to officials who decide issues critical to that corporation. Should corporations have a higher standard than the United States Congress? And many state governments have tighter standards, too. Should not Congress be the flagship of our ethical standards? Where is the leadership to make this happen this year?
This kind of reform should also be pushed in the 14 states where citizens have full power to place proposed statutes on the ballot and enact them into law. About 70% of voters would go for a ballot measure to “toughen our conflict of interest law,” I estimate. In the scramble that would follow, either free campaign advertising would be required as a condition of every community’s contract with cable providers (long overdue), or else there would be a mad dash for public campaign financing programs on the model of Maine, Arizona, and Connecticut. Maybe both things would happen, which would be good.
I urge the large reform organizations to consider this strategy. They have never listened to me in the past, but they also have not gotten the job done and need to come alive or now get out of the way.
And to the Supreme Court, you force us to defend our democracy––a democracy of people and not corporations––by going in breathtaking new directions. And so we shall.
Doris “Granny D” Haddock
Dublin, New Hampshire
While I do not agree with the ruling I understand the reasoning for it.
Public financing is the only way to reduce the influance of large corperations and groups.
But I suspect that the people are not paying attention enough to realize this. As soon as any real proposal comes along to do public financing, all these groups left and right will line up and spend billions if needed to defeat it. Unless the people are so ready for some real change and refuse to listen to this endless garbage that comes out of the many different groups this would impact, I see no real change coming to the Governments of this Country.
All the current proposals including the paycheck protection act go down the path of restricting contributions, not providing equalzing funding. As with most proposals the paycheck protection act favors one side the Republicans over the Democrats, since it affects Labor only.
BTW- the paycheck protection act is now unconstitutional, becuase of this ruling.
Vern,
I don’t know if you saw this article on Truthout, but it makes the recent Supreme Court decision just that much scarier.
“Spellcasters”: The Hunt for the “Buy-Button” in Your Brain
Friday 22 January 2010
by: World Business Academy, t r u t h o u t | Op-Ed
MRI brain scan. (Photo: jsmjr / Flickr; Edited: Lance Page / t r u t h o u t)
Editor’s Note: Truthout is joining with the World Business Academy in an effort to demonstrate popular opposition to the unethical practice of neuromarketing manipulation. Please visit the Stop Neuromarketing page to view a video and sign the petition.
Guard your reptilian brain. Corporations and politicians are trying to tap into it to use the latest brain research and sales techniques to influence your buying and voting patterns.
The idea is this: you have three brains, the new brain that thinks, the middle brain that feels and the old brain that decides. The old brain (also called the “reptilian brain” because it dates back 450 million years and is like reptiles’ brains today) is focused on survival. It is the gatekeeper that controls what gets to the other two brains.
Using a form of marketing known as neuromarketing, corporations and politicians are using MRIs, EEGs, and other brain-scan and medical technology to craft irresistible media messages designed to shift buying habits, political beliefs and voting patterns, as described in the World Business Academy’s video “Spellcasters.”
By measuring activity in different parts of the brain in response to an ad or other media message, advertisers and political consultants can create advertising campaigns that tap into the pre-conscious brain. The idea is to assess central nervous system response to certain ads, the better to skirt the viewers’ rational thought.
Since the dawn of commerce, sellers have tried to figure out how to best pitch their wares, grab attention and close the deal. Sales pitches have always been designed to create a willing buyer, often by creating needs and wants and then offering up a new product to satisfy them.
Clever and unscrupulous sales pitches are nothing new. They helped create a nation of smokers until litigation revealed that tobacco companies hid known risks. The court cases led to big damage awards, new warning requirements and, finally, fewer smokers.
The use of music, images and emotion to manipulate the consumer and voter is also nothing new. But neuromarketing involves a degree of intrusiveness and manipulation that needs to be exposed and stopped. Consumers pushed back when advertisers turned to subliminal advertising – the practice of flashing an image for a tiny fraction of a second, too fast for the cognitive brain to process. It’s time to push back again.
Neuromarketing is sometimes defined to include not just the use of brain scanners, but also the use of eye tracking and skin sensors to assess the power of an image or media communication. Whether or not there is any bright line that divides appropriate and inappropriate uses of technology to get inside people’s heads in the figurative sense, here is a stand we should take and fight to hold: technology that literally gets inside people’s heads in an attempt to circumvent their rational thought and animate their preconscious brain is unethical and unacceptable. Brain scanners go too far. Marketing and public relations firms should be limited to tools that measure the external manifestations of people’s reactions to media messages.
Neuromarketing undermines our core democratic values of freedom and self-determination. No wonder the practice is still largely in the closet. Most companies and political parties do not want to become known as master manipulators, whether they’re selling a consumer product or a political candidate. But just this week, Bark Group Inc., a multinational European advertising company, issued a release about neuromarketing technology that Bark is developing with a brain research firm MindMetric, to produce ad campaigns that will create a stronger emotional response in consumers.
Spooked? If you aren’t, you should be.
Powerful and well-funded corporate interests already wield too much political power. If neuromarketing catches on as a favorite tool of politicians and their masters, 2010 will make the totalitarian mind control games described in George Orwell’s frightening book, “1984,” look like child’s play. Big Brother is watching you.
Congress should hold hearings to investigate the commercial and political uses of neuromarketing so the public can learn what companies and political candidates are using neuromarketing research to manipulate consumers’ and voters’ choices. The Democratic and Republican parties and all 2010 political candidates should disclose their neuromarketing research and expenditures. The public should demand that companies pledge not to use neuromarketing or other unethical marketing techniques.
That you, the reader, take action is more important now than ever in light of this week’s Supreme Court decision that allows corporations to spend as much as they want to influence voters in federal elections. The decision wipes out a century of law that somewhat curbed the power of corporate money over Congress. If not countered by determined citizens fighting back, it could spell the end of our 200-year experiment with democracy.
The fact that 72% or more of the U.S. economy is consumer-controlled means that we can – and must – use our dollars to impact corporate decision making, or all is lost. People must put their money where their values are, and corporate America will listen – because our purchases make their cash registers ring. We may have lost tremendous power at the ballot box but we can control society from the cash register.
There is one shining example where a depressed minority in America without the right to vote, opposed by every formal institution in society, channeled consumer spending to change the political course of our nation’s history. That was the grape boycott in the 1960s led by migrant farm workers and Cesar Chavez who said, “please do not buy grapes, so we can live without being subjected to toxic pesticides and inhuman working conditions.” American consumers responded with their dollars and history was changed forever.
That example of consumer power does not apply only to disenfranchised political minorities. It is the beacon we must follow if we are to save our free will and the legitimacy of our electoral system.
Almost two centuries ago, Thomas Jefferson warned about the power of “moneyed corporations” to distort good government. He wrote about his hope to “crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”
Sign the neuromarketing petition. The World Business Academy will keep a public record of those companies that pledge not to use neuromarketing. Those are the ones you want to do business with. Your choice to be individually responsible matters now more than ever. It’s time to put your money where your values are.
About the Authors:
Rinaldo Brutoco is a well-known futurist and the founding president of the World Business Academy, a nonprofit think tank launched in 1987 with the mission to educate and inspire the business community to take responsibility for the whole of planetary society. He is a frequent public speaker and a prolific author on renewable energy, climate change and sustainable business strategies. He is the co-author of “Freedom from Mid-East Oil” (2007), a leading book on energy and climate change, and “Profiles in Power” (1997) a college textbook on nuclear power and the dawn of the solar age.
Madeleine Austin is vice president of the World Business Academy; editor of the World Business Academy’s 2007 book, “Freedom from Mid-East Oil,” and a member of the Hawaii Energy Policy Forum. She is the co-author with Rinaldo Brutoco of “The Nuclear Nemesis” (ABA, Trends May/June 2008) and “The Nuclear Nemesis Redux” (Forum CSR International, Dec. 2008).