[EL] Citizens United revisionist history: "banning books"

Sun Oct 11 17:36:49 PDT 2015

I have great respect for controlling precedent  ( which remains controlling. until explicitly over- ruled) , which is why I am critical of Justice Kennedy's description of Pacs as separate from the entities that sponsor then:
See: PIPEFITTERS LOCAL UNION NO. 562 et al., Petitioners, v. UNITED STATES, 407 U.S. 385 (92 S.Ct. 2247, 33 L.Ed.2d 11) (1972)

See Also, Footnote 4 in FEC v. National Right to Work Comm., 459 U.S. 197 (1982):

“The separate segregated fund may be completely controlled by the sponsoring corporation or union, whose officers may decide which political candidates contributions to the fund will be spent to assist. The "fund must be separate from the sponsoring union [or corporation] only in the sense that there must be a strict segregation of its monies" from the corporation's other assets. Pipefitters v. United States, 407 U. S. 385<https://supreme.justia.com/cases/federal/us/407/385/case.html>, 407 U. S. 414<https://supreme.justia.com/cases/federal/us/407/385/case.html#414>-417 (1972). See also Buckley v. Valeo,424 U. S. 1<https://supreme.justia.com/cases/federal/us/424/1/case.html>, 424 U. S. 28<https://supreme.justia.com/cases/federal/us/424/1/case.html#28>, n. 31 (1976).”
Sent from my iPhone

On Oct 11, 2015, at 6:09 PM, Benjamin Barr <benjamin.barr at gmail.com<mailto:benjamin.barr at gmail.com>> wrote:

Trevor,

I do understand that a minority of folks believe controlling precedent is wrong.  But you've lost that argument, so let's move on.

Of course, you must understand that PACs are legally distinct from any corporate sponsor even if individuals wear "different hats," just like they do for IRS non-profit issues.  Perhaps you just don't like that longstanding rule?  Sure, there's an overlap of interests and perspectives, just like in the 501C3/C4 dual hat-wearer context, but that doesn't eviscerate the fact, and, well, precedent, that they are separate entities with separate First Amendment rights.

It is equally silly to think that donors "no legal say" in how their contributions are spent.  In a free society, you can decide if you want to:  (a) keep investing in the corporation, (b) elect not to work for the corporation, or (c) not otherwise contribute to the PAC in question.  No government program needed.

Forward,

B

On Sun, Oct 11, 2015 at 5:55 PM, Trevor Potter <tpotter at capdale.com<mailto:tpotter at capdale.com>> wrote:
The only problem with citing Justice Kennedy's statement about Pacs is that it was incorrect: the Court had long held that Pacs were creations of their corporate and labor sponsors and completely under their control. Corporations selectthe treasurer and officers of their Pacs and gave them whatever structure they decide- including none. Many corporate Pacs simply have a treasurer appointed by the VP of Gov't Affairs. Donors have no legal say in how their contributions are spent.

Trevor Potter

Sent from my iPhone

On Oct 11, 2015, at 5:48 PM, Benjamin Barr <benjamin.barr at gmail.com<mailto:benjamin.barr at gmail.com><mailto:benjamin.barr at gmail.com<mailto:benjamin.barr at gmail.com>>> wrote:

Dear Marty,

Just because government might force others to speak for you doesn't mean your First Amendment rights haven't been abridged. Or as Justice Kennedy explained in Citizens United: "A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak." There you have it.

You probably don't want me to speak for you. I don't want you to speak for me. You get it, right? Individual rights are individual, not fungible, aggregate hazy approximations (apologies, Justice Breyer).

Corporations are neat things. They allow for people to associate with one another, pursue common goals, get rich, clean up the environment, enact social justice, and so on. Cutting off shareholders from effective advocacy is, well, a ban. I'll leave it to the literature hounds to determine if it rises to a Fahrenheit-451 level.

Forward,

Benjamin Barr
General Counsel
Pillar of Law Institute

On Sun, Oct 11, 2015 at 5:32 PM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com><mailto:lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>>> wrote:
No -- even a (hypothetical) (non-MCfL-exempt) corporation without a PAC would not be "barred" from publishing a book. Even if the book contained express advocacy, the law permitted a corporation to publish it as long as it did not use shareholder funds to do so. That is to say, it would as a practical matter have to set up a PAC and collect funds for the purpose of publishing the express advocacy. This sort of source restriction (not a publication restriction) really wasn't such a shocking idea -- it was the legal regime that had been in place for 60 years, and -- understandably -- no one thought that we lived in a Fahrenheit-451-like world in which the state "banned books."

On Sun, Oct 11, 2015 at 5:15 PM, Jonathan Adler <jha5 at case.edu<mailto:jha5 at case.edu><mailto:jha5 at case.edu<mailto:jha5 at case.edu>>> wrote:
Well, kinda.

Pressed on the issue, he acknowledged that (under the government's position) a corporation could be banned from publishing a book unless it used PAC funds to pay for publication, so a corporate publisher that lacked a PAC, could be barred from publishing and distributing the book.

Here's the transcript. The relevant exchanges occur at pages 28-30.

JHA

On Sun, Oct 11, 2015 at 4:37 PM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com><mailto:lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>>> wrote:
Just an aside, to address the oft-repeated canard that "the deputy solicitor defended government power to ban books at the first CU argument."

Of course Malcolm Stewart said nothing of the sort. He said that if a corporation wished to publish a book containing express advocacy, the state could require that such publication not be subsidized by general corporate treasury funds.

On Sun, Oct 11, 2015 at 2:56 PM, Ilya Shapiro <IShapiro at cato.org<mailto:IShapiro at cato.org><mailto:IShapiro at cato.org<mailto:IShapiro at cato.org>>> wrote:
But there's no need to balance rights/values here. 200 people spending a lot of money on political speech don't inhibit anybody else's right to spend money on speech (individually or pooled) or to knock on doors, or to otherwise engage in political speech. There's not some zero-sum game with a finite amount of speech (or a finite amount of money to spend on it).

Also, three points regarding some mistaken premises (not sure to what extent the rest of your argument stands or falls thereby):

1. Money is speech only insofar as bullhorns, laptops, printing presses, wifi, and other tools for facilitating speech are, no more no less. That really shouldn't be controversial -- though perhaps, like the deputy solicitor who defended govt power to ban books at the first CU argument, many people on this list are ok with restricting all those tools if they're used "too much" for political speech.

2. There's not a consensus that money shouldn't be used to allocate kidneys. There's a reason there's a shortage of organs and people die on waiting lists. And evidence from Iran, of all places, show that kidney markets can work rather well.

3. I'm not sure what "false" allegations about Planned Parenthood you mean -- I guess something different/earlier than the current scandal -- but surely it's not the government role to be some sort of fact-checker regarding public debates. See the Ohio law that was before the Court last year (you'll perhaps recall my satirical brief that PJ O'Rourke joined) and was struck down on remand.

Ilya Shapiro

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--

Jonathan H. Adler
Johan Verheij Memorial Professor of Law
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Case Western Reserve University School of Law
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