| Subject: Re: [EL] 12 Months After: The Effect of Citizens United |
| From: "Volokh, Eugene" <VOLOKH@law.ucla.edu> |
| Date: 1/20/2011, 8:40 AM |
| To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu> |
I’m pretty sure the people on this list are actually educated, and not just seemingly educated. Nor does one have to be “confus[ed]” to disagree on the subject; one just has to have a different approach to matters.
In particular, there are plenty of educated and thoughtful scholars who do not think “No law” can actually mean “no law” (at least no law restricting speech), when that would mean that death threats, copyright infringement, and a variety of other speech that should be constitutionally unprotected and that has never been seen as constitutionally protected. Likewise, there are plenty of such scholars who do not share Mr. Roland’s view either about the non-incorporation of the First Amendment or the supposed inherent applicability of the Ninth.
I think Mr. Roland and I probably actually agree on the bottom line as to Citizens United (though likely not the reasoning). My point is simply that one can and should disagree without casting aspersions on others’ education, or assuming that people who don’t share your views are therefore necessarily confused.
Eugene
From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Jon Roland
Sent: Thursday, January 20, 2011 8:03 AM
To: election-law@mailman.lls.edu
Subject: Re: [EL] 12 Months After: The Effect of Citizens United
The confusion on this issue among seemingly educated persons is amazing.
The language of the First Amendment is very clear. It is a restriction on the power of Congress to restrict certain kinds of activities, specifically, the production and dissemination of communications. The restriction was not further restricted to the kinds of entities that might engage in those activities, such as individuals or citizens. As stated, it applies to the production or dissemination of communications by anyone or anything, even genetically enhanced animals, androids, or space aliens.
Corporations are just collections of individuals, who do not lose any rights in associating with others. They are not (yet) composed of collections of animals, machines, or space aliens, but when they are, the same restriction on Congress will apply. "No law" means no law.
If a corporate charter does not authorize donating to election campaigns, then that is a matter for enforcement by its membership or by the designated agency of the chartering state, not of Congress.
Undue influence by concentrations of wealth? Wealthy individuals can exercise such influence as well. There is nothing about corporations as such that makes them more suspect than individuals might be.
If you don't want concentrations of wealth to unduly influence elections, then don't use elections to select officials. Use sortition, which is the only method ever discovered to do that, unless we turn over governance to machines, in which case I want to be the one who programs them.
Strictly speaking, the Emerson and succeeding cases that extended the First Amendment to the states via the 14th, were not correct. The First only restricts Congress. However, the Ninth is not limited to Congress, and includes the kinds of public action listed in the First. The SC should have cited the Ninth, not the First, for a cleaner opinion.
-- Jon