--- On Tue, 10/19/10, Trevor Potter <TP@capdale.com> wrote:
From: Trevor Potter <TP@capdale.com>
Subject: Re: [EL] Public attitudes to SCOTUS
To: JBoppjr@aol.com, BSmith@law.capital.edu, election-law@mailman.lls.edu
Date: Tuesday, October 19, 2010, 9:28 AM
Not to beat a dead horse, but I think the argument that the founder's "wisdom and foresight" was that corporations were persons for purposes of the Bill of Rights has been pretty well exploded in previous postings on this listserve. I'm afraid the only way to get there is to use that "liberal" tool--"interpretation of a living Constitution" and recognize that judicial views of the constitutional rights of corporations have evolved over time, and even now are far from complete.
I am struck as I think about these issues how the reasonably small doctrinal differences in Citizens United have such enormous practical consequences. I realize that the gap between minority and majority views is perceived to be enormous, but it really wasn't. If the issue is viewed on a scale of one to ten, the debate in Citizens United can be said to have taken place between "eight" and "nine" on that scale. A one" would be the view that corporations are artificial creatures of the state with no rights except those specified in their charter, and a "ten" the concept that corporations are indistinguishable from individuals for all first amendment speech purposes. In fact, prior to Citizens United corporations had robust, Court protected, opportunities to participate in the federal political process, and in the political process in the roughly half of the states that prohibited direct corporate political expenditures.
Under the "draconian" McCain Feingold law upheld by McConnell, corporations could engage in full political speech to their shareholders and executives (the "restricted class") , could use corporate funds to establish, administer, solicit for and encourage a PAC comprised of money from individuals (which itself could make both unlimited independent expenditures and contributions to candidates larger than individuals), and could use corporate treasury money to run advertising for or against ballot measures and to pay for unlimited issue ads talking about issues of concern to the corporation (provided they were not run in the midst of the election period if they referred to federal candidates up for election in that state). Non-profit corporations (usually the poster child in the corporate rights argument) were allowed under the Court's previous MCFL decision to make unlimited political expenditures provided they did not do so as a conduit for for-profit corporate money.
Under this pre-Citizens United view, corporations thus had limited but important expressive rights, despite being correctly identified in Austin as possessing extra powers in the political marketplace by virtue of being artificial person with unlimited life, aggregating wealth in a manner different from natural persons, and with a legally narrow purpose only of benefiting shareholder economic well-being. The Court moved from this "eight" position to a "nine" on the scale of corporate right at least partially based on the currently bankrupt assumption that the sources of funding of corporate speech would be fully disclosed so that shareholders could exercise their rights of governance and, more importantly, voters would know who was speaking (I say only a "nine" on the 1-10 scale because the majority suggests their view of the First Amendment rights of citizens to hear all views is not absolutist--it may well not extend to the views of non-US corporations, foreign nationals, or other foreign entities, and perhaps to certain US entities if a specific tie to the dangers of quid pro quo corruption can be shown in the future).
My point is that the Court majority in Citizens United chose to ignore the carefully considered policy choices made by Congress in McCain Feingold (and in the post-Watergate FECA and the Taft Hartley law and earlier laws) in order to move constitutional doctrine only incrementally further in an absolutist first amendment direction. In doing so, the Court (with not a single judge with practical experience in elective office, since the departure of Justice O'Conner) has unleashed a significant and as yet ill-defined change on our democracy--a change it is clear from their statements on disclosure that they did not fully understand.
It is quite true, and quite right, that we do not put the Bill of Rights up to a plebiscite of voters, or the much smaller universe of persons who respond to opinion polls. However, what the polls reflect is what we know to be true--a five-four Supreme Court decision has wrought an enormous change in the way our elections are conducted, contrary to the will of Congress and the Executive expressed in legislation after a long-drawn out legislative conversation that was itself based on a hundred years of previous enactments and discussion of these issues. In doing so, the Court upset settled law reaffirmed only a few years previously by the same Court, in what appears to be a quest for doctrinal change regardless of consequences (or perhaps unaware of consequences, as in the case of the Court's statements on the ready availability of disclosure).
The false dichotomy presented by the advocates of Citizens United is that the Court ignored the First Amendment prior to Citizens United, at which point the scales fell from the eyes of enough Justices to (finally) embrace its dictates. This is a unrecognizable caricature of the Court's position. Beginning with Buckley, and continuing through Bellotti (1978), NRTW (1982) ,MCFL ( 1986) , Austin (1990), Beaumont (2003) , and McConnell (2005) , the Court implemented the First Amendment's requirements in the corporate context, while respecting the choices made by the legislative and executive branches in election administration and the deterrence of corruption. What happened in Citizens United was not that the Court suddenly discovered the First Amendment, but rather that a change of a single Justice enabled the minority in McConnell to become the majority in Citizens United, ignore the doctrine of deference to the other branches, overturn a century of history, and determine that their theory of the First Amendment was superior to that of their predecessors. As noted above, I believe their theory was only an increment change from the Court's previous doctrine --but the resulting practical change look set to be far more dramatic than the doctrinal one.
Trevor Potter
From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of JBoppjr@aol.com
Sent: Tuesday, October 19, 2010 9:25 AM
To: BSmith@law.capital.edu; election-law@mailman.lls.edu
Subject: Re: [EL] Public attitudes to SCOTUSThe main reason that people at the time insisted that the Bill of Rights be adopted is that they recognized that these freedoms needed to be guaranteed against (often) temporary majorities who would use federal power against them. In other words, these freedoms would not be popular with a majority of the people from time to time or in some applications. In fact, even though the First Amendment protects the four indispensable democratic freedoms, protecting the right of the people to criticize our government, the ink on the Bill of Rights was hardly dry when the Federalist Party passed the Alien and Sedition Act in the 1790s making it a criminal offense to hold the government and public officials in disrepute. They were attempting to prevent the emergence of the Republican Party lead by Thomas Jefferson. They failed.So here we have some liberals and progressives taking polls on the First Amendment's protections -- like it matters -- and using it to justify draconian cutbacks on those freedoms. And of course we have the Democrats eager to do it to fend off the upcoming Republican victories. Human nature just doesn't change and the more we find out about the Founders the more we can admire their foresight and wisdom. Jim BoppIn a message dated 10/18/2010 12:11:27 P.M. Eastern Daylight Time, BSmith@law.capital.edu writes:So from a quick review looking at issues that pertain to free speech, it appears that the public is more supportive of the Court's decision on Citizens United than it is of the Court's decisions on flag burning and "crush" videos, and roughly equal to support for not censoring video games and allowing tobacco advertising. Meanwhile, another question shows that nearly 80% agree that corporations have a right to free speech. p. 98. On other issues, it appears that far more people agree with Citizens United than agree, for example, with handgun control (p. 103), or that oppose Arizona's immigration law (p. 98).It's also interesting the extent to which large pluralities or majorities generally don't know what the Court has ruled on most issues. Within this framework, I would anticipate equally large majorities or pluralities that do not understand current law or actual practices in life. I am a firm believer that the electorate will generally get right the broad direction in which it seeks to move the country, but that the advantage of representative government over pure or direct democracy is that it allows for representatives to better inform themselves, put more thought to issues, and make better decisions on the specifics of public policy. The problem comes when politicians decide that demogoguery and raw emotional appeals can get them elected better than character, thoughfulness, and serious discussion.Bradley A. SmithJosiah H. Blackmore II/Shirley M. Nault Designated Professor of LawCapital University Law School303 E. Broad St.Columbus, OH 43215(614) 236-6317
From: election-law-bounces@mailman.lls.edu on behalf of Rick Hasen
Sent: Mon 10/18/2010 10:58 AM
To: Election Law
Subject: [EL] Electionlawblog news and commentary 10/18/10October 18, 2010
"Senate Dem: Take up campaign finance bill in lame-duck session"
The Hill reports.
Posted by Rick Hasen at 07:56 AM"In important cases, Supreme Court outcomes sometimes determined by a single word"
The Washington Post offers this report.
Posted by Rick Hasen at 07:51 AM"God Didn't Create Corporations"
Susan Brooks Thistlethwaite blogs.
Posted by Rick Hasen at 07:47 AMPersily/Ansolabehere Data on Attitudes About Corporate Spending in Elections
Following up on this post, via Doug Berman comes a link to this (preliminary version of?) the Persily-Ansolabehere study of public attitudes toward Supreme Court constitutional decisions. The CU-related questions are on page 101.
Posted by Rick Hasen at 07:44 AMCert. Denied in Simmons v. Galvin, First Circuit Felon Disenfranchisement Case
SCOTUSBlog reports. More from AP. I expected this after the Ninth Circuit's recent en banc ruling on this question eliminated the circuit split.
Posted by Rick Hasen at 07:37 AMOctober 17, 2010
"Groups Push Legal Limits in Advertising"
The NYT explores 501(c)(4) status. (More here ("A Profusion of Magic Words")). I give some of the basics in my recent Slate column on secret donors.
Posted by Rick Hasen at 06:54 PM"Democrats have raised $1 million from foreign-affiliated PACs"
This item appears at The Hill's blog.
Posted by Rick Hasen at 05:24 PM"Axelrod Calls for End to Mystery Donors"
Roll Call reports on a sensible Administration pivot from the issue of foreign donors to the issue of secret donors more generally. Al Hunt's prediction, now picked up in modified form as a NYT letter from Washington, is that a scandal will emerge from all this secret money. And history tells us that Washington money scandals lead to congressional acquiescence in new campaign finance regulations.
Posted by Rick Hasen at 05:19 PMLevitt: A "Democracy Facts" Product Label?
Rick has graciously invited me to write a campaign-finance guest post as well, focused on disclosure. And I also offer my thanks for the opportunity.
Rick has posted a number of campaign finance items recently with a similar theme: significant donors sponsoring political ads not in their own names, but in the names of organizations with substantial positive valence and suggesting widespread support. Americans for America and the Concerned Taxpayers of America are only the most recent examples. The names seem designed to enhance the credibility of the message, by encouraging viewers and voters to believe that they represent the shared opinions of lots of like-minded individuals.In a new paper, I've suggested a new model of disclosure, equipping viewers to see for themselves whether there are 2 like-minded concerned taxpayers, or 2 million, supporting a particular communication. The model, based on the now-ubiquitous "Nutrition Facts" and "Drug Facts" labels on supermarket and pharmacy shelves, involves a label for "Democracy Facts" (at right, and linked here).
Continue reading "Levitt: A "Democracy Facts" Product Label?"
Posted by Justin Levitt at 01:38 PM"Ballot Measure would resize Legislature"
News from Alaska that does not involve how to spell a candidate's name.
Posted by Rick Hasen at 12:50 PM"PACs linked to foreign companies legally donate millions to U.S. campaigns"
A must-read WaPo report.
Posted by Rick Hasen at 12:44 PMSchleicher: The Parable of the Fox and the Target
[I have asked election law prof David Schleicher to write a series of guests posts related to election law issues in the 2010 elections. There should be one each week before the election. Here's the first.--RH]
Continue reading "Schleicher: The Parable of the Fox and the Target"
First, I'd like to thank Rick for inviting me to write this column about the 2010 elections. One of the great things about this election season has been the availability of blogs by political scientists and statisticians (like the indispensible group blog The Monkey Cage, Seth Masket's Enik Rising, Brendan Nyhan's blog, and of course, Five Thirty Eight) to provide better guidance about what actually effects voting patterns and what is just journalistic noise. Election law scholars blog both pretty frequently and insightfully, I think -- not only Rick, Justin and Dan here, but Rick Pildes, Heather Gerken, Michael Kang and the people at Moritz among a number of others --- but we have not as a group spent too much time using the medium to address the big election law issues implicated by the 2010 elections. So I thought I would give it a go. I'm going to write three columns: Today's is about campaign finance; next week's column will be about election law and party polarization; my final column will discuss the failures of primary elections and urban politics through the lens of the D.C. Mayoral race.
-----
Virtually everyone who thinks about election law has said something about Citizens United. This discussion has focused both on normative questions, like the basic question of whether the Court should have made such a sweeping decision, and on whole series of positive questions about the decision's likely effects, including efforts to determine how much corporate money will be spent in this election cycle, whether Citizens United caused any increase, and to whom the benefits of increased spending have run.
But there has been little focus on the most basic question one might ask about Citizens United: Who is going to change their behavior following the decision?
The answer to this question might seem obvious -- Citizens United eliminated restrictions on independent expenditures by corporations and unions and therefore they are the entities who will change their behavior. But corporations and unions are not monolithic. Some will spend money on politics; others will not. Before we can make predictions about the long-run effects of Citizens United on parties, candidates and public policy, we need to answer the question of which corporations and unions are likely to spend more (and differently) in elections.
One possible answer can be found in a story that took up a day or two of headlines during the 2010 election, in what one might call The Parable of the Fox and the Target.
Within days of one another, two major corporations, News Corp, the parent company of Fox, and Target got in a bit of hot water about their political spending. News Corp. gave $1M to the Republican Governors Association ("RGA") and Target gave $150K to Minnesota Forward, a group supporting Tom Emmer, a very conservative candidate for Governor in Minnesota who, among other things, supports a state constitutional amendment banning gay marriage. Both were criticized, but the reactions were very different. News Corp. was teased in the press for a day or two, but largely ignored the criticism, with Rupert Murdoch noting that he made the donation because he is friends with John Kasich, the Republican candidate for Governor of Ohio. Target was subject to a boycott led by LGBT groups and was forced to apologize.
Why did News Corp. largely escape criticism, and ignore what attacks came its way, while Target was both battered and cowed by the criticism it received for its much smaller amount of spending?
The answer, I think, lies in the ownership structure of the companies. And the difference between Fox and Target can tell us a great deal about which corporations are likely to spend money in politics. And, in turn, this can tell us a lot about the likely effects of Citizens United on the country and its politics.
Posted by Rick Hasen at 12:31 PMAre Micro-Donors Fueling at Least Part of Tea Party?
I have written extensively about the role of micro-donors (donors giving under $200 in the aggregate to a campaign) and micro-donations (donations under $200) to presidential candidates, especially to the Obama 2008 campaign. Now comes this CBS News report (based upon data from the Center for Responsive Politics) that micro-donors are playing a key role for a number of Tea Party candidates for House and Senate.
Of course, there's big money behind the Tea Party as well.Posted by Rick Hasen at 11:58 AM"Justice Department was wrong to dismiss the New Black Panther case"
See this letter to the editor in WaPo.
Posted by Rick Hasen at 10:21 AM--
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