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Of the corporations, by the corporations, and for the corporations?

Dan Farber, professor of law | January 22, 2010

The Court’s decision in Citizens United was something of a foregone conclusion.  Still, it was a bit breathtaking.  The Court was obviously poised to strike down the latest Congressional restrictions on corporate political expenditures.  But the Court went further and struck down even restrictions that had been upheld thirty years ago.  Seldom has a majority been so eager to reach out, address a question that wasn’t presented by the parties and overrule a bevy of prior decisions.  The term “judicial activism” is overused but seems entirely appropriate here.

In the end, the Court just doesn’t see any real reason for campaign finance restrictions.  It may be willing to tolerate some token restrictions in the name of precedent, but basically, it views economic influence over the political process as altogether natural and appropriate.

The decision was a foregone conclusion because the key support for the prior precedents, Justice O’Connor, had left the Court and had been replaced by the more conservative Justice Alito.  The decision rests on three key premises:

1.  It’s just not a problem that money buys influence. “That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.”

2.  Money talks. “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech.”

3.  Economic interests deserve political voice. Restrictions on corporate speech “muffle the voices that best represent the most significant segments of the economy.”

What worries people about corporate speech is exactly the opposite: They find it problematic to allow special interests with their economic clout to buy political influence.  But one person’s “special interest” is another person’s “voice that best represents the most significant segments of the economy.”

Interestingly, the Court also opens the door for foreign influence over elections.  The Court says that corporate restrictions might be constitutional if they were limited to “ corporations or associations that were created in foreign countries or funded predominately by foreign shareholders.”  Notably, this does not say “controlled by” foreign shareholders, and operating control often requires less than 50% percent ownership.  So the door is definitely open for foreign controlled corporations (in fact, corporations controlled by foreign sovereign wealth funds) to spend funds to influence our elections.

What does this mean for environmental law?  Corporations already have a lot of political influence; this decision will just increase that influence at the margin – at least in the short run, until corporations start feeling comfortable with multi-million dollar campaign expenditures.  In the longer run, the effect will clearly be to increase the influence of special interests on the political process.  Just what we needed!

Comments to “Of the corporations, by the corporations, and for the corporations?

  1. My comprehension of the judicial process is rather limited. However, I do understand the idea that judgments are made based upon precedents and not opinions of right and wrong. Personally, I do not find myself aligning with this judgment, but I believe the process should be maintained. Is there ever a time when precedents becomes dated? I do not see the need to blur the line between private enterprise and the governing processes. The idea of monetary power conquering political prowess seems to negate the standing definition of a democracy. If anything elections should be made free due to the public’s interest. In this case ‘free’ is not limited to only the relation of money. If the owners of these companies want a voice during the election process then they can line up at the polls just like the rest of us.

  2. The problem is not that corporations can advocate to politicians. It’s in the power that politicians have to interfere in economic activity. It’s a bad idea to have a system that allows for things like corn subsidies. When the people you don’t agree with are in charge, they will do a lot of things you don’t support.

    Now, let’s look at what actually happens when you put a cap on how people can communicate. Those in charge regulate what can and cannot be said by people. Let’s face it, corporate expression comes from the people who own it. Their rights to speak are violated. The people behind Citizens United were unable to show “Hilary the Movie” through broadcast television. That’s blatant censorship of a message.

    Incumbents are the real winners of campaign finance law. It is hard to fund a third party candidate without a few people who want to spend a lot of money on him. For example, Ron Paul will never be able to collect as much money from different people as someone who is nationally known, like Barack Obama. If instead a few people can donate large sums of money to Dr. Paul, he has the potential to be heard.

    While you demonize corporations, the true thieves plunder away.

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