Citizens United

Citizens United Decision Fulfilled Earl Warren's First Amendment Vision

He and two likeminded justices saw no room for muzzling speech.

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Four years have come and gone since the Supreme Court handed down Citizens United v. FEC, striking down a federal law that prohibited a corporation from showing a movie critical of then-Senator Hillary Clinton shortly before the first round of Democratic primaries. (Although Citizens United intended to air the film in 2008, it had to wait until the second year of the Obama presidency before learning the Constitution protected the movie.)

Back then, the response by the campaign finance control crowd to Citizens United was vicious. In one of his hyperventilating ukases, then-MSNBC frontman Keith Olbermann decreed Citizens United the worst decision since Dred Scott. Senator Patrick Leahy, chairman of the Judiciary Committee which oversees nominations to the federal courts, charmingly suggested that the case "could threaten the public's confidence [sic] the Court's impartiality." The president of the United States took time out of his State of the Union address to lecture the Supreme Court, claiming (incorrectly) that Citizens United overturned a century of law and would allow foreign money to dominate our elections.

If only the Supreme Court had listened to the wisdom of Chief Justice Earl Warren and his likeminded justices, we would never have had to deal with Citizens United. In fact, had the Supreme Court listened to Chief Justice Warren, as well as FDR appointees William O. Douglas and Hugo Black, the holding of Citizens United would have been the law of the land for the past 57 years.

In 1946, Congress passed the Taft-Hartley Act over President Harry Truman's vociferous veto ("I regard this as a dangerous intrusion on free speech, unwarranted by any demonstration of need, and quite foreign to the stated purposes of this bill."). Among other things, Taft-Hartley imposed a specific ban on independent expenditures by corporations and labor unions advocating for or against candidates for office. That is, even if there was no coordination between a candidate and a union supporting him, the law banned that union from expending money on the candidate's behalf.

(As an aside, Senator Robert "Mr. Republican" Taft's zeal against union independent expenditures likely stemmed from the Congress of Industrial Organization's decision to "distribut[e] to the public at large…200,000 copies of a pamphlet opposing the re-election of Senator Taft and supporting his rival.")

A decade later, United States v. Automobile Workers, 352 U.S. 567 (1957), came before the Supreme Court. The defendants, a labor union, had made an independent expenditure before the 1954 elections. The federal government responded with modest forbearance by issuing "a four-count indictment" against the United Autoworkers.

There were two questions before the Court. First, was the union's independent spending covered by Taft-Hartley (and therefore the indictment could stand)? Second, if the expenditure was banned by the law, then did Taft-Hartley's expenditure ban run afoul of the First Amendment?

Rather than wrangle with the First Amendment issues at stake, a majority of the Court "[r]efus[ed] to anticipate constitutional questions," and simply found the union's spending was covered by the law. The case was remanded for trial.

But Justice William O. Douglas's blistering dissent on behalf of himself, Chief Justice Warren, and Justice Black made clear that the Court's reluctance to act was an affront to the very fabric of the Republic. (The entire dissent is worth a read.) Appropriately for the modern world, it's a worthy retort to the tiresome talking points of the campaign finance controllers.

Some (you've seen the protest signs) have suggested that corporate and union electioneering is not protected by the First Amendment, "because money isn't speech." Justice Douglas's dissent properly lays this misnomer to rest:

[N]o one would seriously contend that the expenditure of money to print a newspaper deprives the publisher of freedom of the press. Nor can the fact that it costs money to make a speech —whether it be hiring a hall or purchasing time on the air—make the speech any the less an exercise of First Amendment rights.

Others (again, you've seen the protest signs) have held that corporations and unions have no First Amendment rights, because such entities "aren't people." Justice Douglas disagrees:

First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.

Indeed, too often, complaints about Citizens United are really complaints about who is making independent expenditures. Hence the endless efforts to tie everything distasteful about the political right to the Koch Brothers.

In 1957, at a time when Southern states were passing disclosure laws designed to reveal the membership lists of the NAACP and "McCarthyism" was more than just an ad hominem tacked onto a Facebook status, Justice Douglas had the proper response:

Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. [emphasis added]

In his concluding paragraphs, Justice Douglas wrote that the constitutional deficiencies of the independent expenditure ban were "so grave that the least we should do is to construe" the law "to limit the word 'expenditure' to activity which does not involve First Amendment rights." Unfortunately, Earl Warren's Supreme Court never got around to doing so.

Thankfully for us all, Chief Justice John Roberts picked up where his predecessor left off. The result was Citizens United v. FEC.

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  1. Is it strange for me to say that I really don’t give a fuck what Earl Warren or any other dead and gone Supreme says about this?

    1. We shouldn’t, but he’s a liberal icon so it might surprise them (or at least irritate them) that one of their greatest heroes would have been okay with the KKKochtopus and other corporations spending money on speech under the protection of the First Amendment.

      1. Nothing else that they ever learn to their surprise ever changes their FULL STATISM views, so what possible difference can this make? You can point out the eugenics in progressive history all day, and no dent. You can point out Robert Byrd all day, and no dent.

        It doesn’t matter. None of this matters. To partisans, arguments are like rain; they just put their slickers on and let it wash off. You can dump a bucket of shit on them and they’ll just hose themselves down and keep going.

        1. It’s projection and animism all the way down, as you always note.

          1. It’s all part of the nice, oblivious partisan package. And these people control much of our lives.

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        2. Right, and wasn’t there an article posted in one of threads last night simply waiving away the millions of deaths under communist regimes because sometimes people die in capitalist countries?

          1. That was the self-described communist scumbag on last night’s Independents. His arguments were so laughably stupid that you can safely ignore the shit out of them. He clearly was a “communist” because he thought it was fashionable and risque; everything he said indicated he was too stupid for anything else.

            1. They invited Tony onto the show?

              1. His demeanor wasn’t sour puss, so I don’t think so. This guy also didn’t claim to be anything else but a commie. DNC types get bent out of shape if you call them or compare them to socialist.

            2. Ya, when are they going to have a “ask a Nazi” segment. To get the persepective of the other major mass murdering branch of socialism.

              1. Regardless of the flavor, for the hardcore progressive, socialism without mass murder would be like sex without pleasure.

          2. There was some idiotic Facebook Meme going around last weekend showing a picture of some idiot with a mullet wearing a torn up T-Shirt with the caption “since he watches Fox News he thinks he is an expert on politics, religion, and public policy” or something to that effect.

            I normally ignore that shit. But that one was so vile it pissed me off. I posted a comment saying

            “He is also not an animist who believes guns just shoot people of their own agency, doesn’t think the USSR would have totally worked if only the right people were in charge, and knows Bull Connor was a Democrat. So there is that”.

            Much butt hurt ensued.

            1. “since he watches Fox News he thinks he is an expert on politics, religion, and public policy”

              The converse would be some hipster with a neatly trimmed beard, and something like “Smart people watch The Daily Show and I watch The Daily Show. That makes me smart because smart people watch The Daily Show.”

            2. How many times did they call you a racist?

              1. About 20, in the first hundred butt hurt comments.

            3. “since he watches Fox News he thinks he is an expert on politics, religion, and public policy”

              Oh my god the projection, it burns. Change “Fox” to “MSNBC” and there you are. The un-self-awareness of the Projectoids is just stunning.

              1. It really is. And remember, these are the people who wake up every day just knowing they are enlightened and judge people based on who they are and not the color of their skin or how much money they have.

                The fact that some guy in a torn up t-shirt and a mullet might know something they don’t know or even qualify as a human being worthy of respect never occurs to them. It was one giant Goldstein.

                1. Everything that has happened before will happen again.

                  The Socialists Despise Mankind
                  According to these writers, it is indeed fortunate that Heaven has bestowed upon certain men ? governors and legislators ? the exact opposite inclinations, not only for their own sake but also for the sake of the rest of the world! While mankind tends toward evil, the legislators yearn for good; while mankind advances toward darkness, the legislators aspire for enlightenment; while mankind is drawn toward vice, the legislators are attracted toward virtue. Since they have decided that this is the true state of affairs, they then demand the use of force in order to substitute their own inclinations for those of the human race.

                  1. They are always pissed off Warty. You would think they would get tired of being angry all of the time. But they never seem to.

                    1. Hate, envy, and jealousy seem to be boundless emotions with boundless energy for those who are possessed by them, John. It’s strange to those of us who aren’t, but there it is.

                2. It was one giant Goldstein

                  JOOOZ!

              2. Change “Fox” to “MSNBC”

                Or The Daily Show. How many people who thought that the picture John describes was awesome and clever and accurate get all of their current events information from a commedian? I guess a lot of them probably read the Huffington Post too.

                1. But damn it, they listen to NPR! They have to be a gazillion times smarter then us.

                  1. I listen to NPR and I still manage to see that these people are idiots. Reading Reason must make me another gazillion times smarter.

            4. You forgot that he doesn’t think Guam is going to tip over and sink into the sea.

              1. OK, I didn’t pay much attention when whoever it was made that comment about Guam. Did someone really think that Guam was going to tip over? It feels silly to have to ask, but it’s so hard to distinguish parody from reality these days.

                  1. Holy shit. Perhaps I lack imagination, but I couldn’t imagine that anyone genuinely was concerned abut Guam tipping over, but this man does seem like he might really be that stupid.

                    1. After a few days his team spun it to say that he meant “tip over” environmentally by being over populated.

    2. Is it strange for me to say that I really don’t give a fuck what Earl Warren or any other dead and gone Supreme says about this?

      How can you know what to think about Earl Warren until Bubble Busters updates their app?

      1. Just the name “Bubble Busters” is so project-o-licious that I’m not sure whether it’s a parody or not.

        1. If you ask me, the franchise went downhill quickly after Bubble Busters 7.

          1. I didn’t say porn, I said parody. Get your mind out of the gutter, and back in the outhouse where it normally resides.

            1. My outhouse is the gutter, you houseist prick. Check your privilege.

              1. Sorry, I forgot you live in the sewer.

                1. “Get back in the sewer, weirdy!”

        2. Shit, now I want the app.

    3. Strange for you to say? Definitely not.

    4. Marge: Do you want your son to become become Chief Justice of the Supreme Court, or a sleazy male stripper?

      Homer: Can’t he be both, like the late Earl Warren?

      Marge: Earl Warren wasn’t a stripper!

      Homer: Now who’s being naive?

  2. If corporations are not people for the purposes of the 1st Amendment, then they are not people for the purposes of any of the rest of the BOR either. That means that if Citizens United had gone the other way, Congress could deprive corporations of property without due process, could discriminate against some corporations for the most vile and unfair of reasons without any worry of their being an equal protection issue and do a lot of other things.

    Worse still, there is nothing special about a corporation. If corporations are not people then neither are charities, fraternal organizations, churches or any other voluntary association. If Citizens’ United had been decided any other way, the American people would have been entitled to protection under the BOR so long as they didn’t organize themselves into any group or exercise their rights in anything but an individual capacity.

    I don’t think there has been a more important case decided in my lifetime than Citizens’ United. It is more important than Heller and McDonald. Had it gone the other way, the BOR would have effectively become a dead letter. The fact that Progs hate the decision so much tells you all you need to know about their respect for the BOR.

    1. If corporations are not people then neither are charities, fraternal organizations, churches or any other voluntary association.

      Leftists despise voluntary association.

      The fact that Progs hate the decision so much tells you all you need to know about their respect for the BOR.

      Well, duh. The only individual rights they support are the right to kill unborn children and the right to force others to approve of same sex marriage.

      1. If people are not free to act collectively, they have no way of effectively resisting the government. Given that, it is no surprise that Progs hate any sort of collective action outside of government.

        1. They don’t like collective action unless it is forced. That’s why they love forced union membership for example.

    2. In 1A terms, corporations are just groups of people assembling peaceably to petition government for a redress of grievances.

      1. Yup. There is nothing special about them and no meaningful way to distinguish a corporation from a church or any other association. Progs like to pretend that corporations purpose of making money makes them different. But that is a distinction without difference. Progs don’t like corporations because their purpose is to make t he evil profit. But that just means Progs don’t like them. It doesn’t mean that some other group couldn’t restrict the activities of other groups who do things they don’t like.

      2. EXACTLY WHAT I’D EXPECT A TEATHUGLIHADIST KKKOCHPORASHUN LOVER TO SAY.

    3. Corporations are evil so it should be permissible to hammer their skulls in with the Big Hammer of Gub’ment.

      If the rule of law gets in the way of that, fuck it. If the constitution gets in the way of that, fuck it. If free speech gets in the way of that, fuck it. It’s ALL ABOUT fucking over the evil corporations.

      At least that’s what seems to be the guiding principles of the progressive left.

      1. Yes, hate, envy, jealousy, and projection. What a combo.

    4. Yeah, my position on the whole issue has remained fairly constant since I was first aware of the case. I typically phrase it thus:

      “If we all agree that Peter has a right to free speech, and Paul has a right to free speech, how can it be that the moment they combine resources to form Peter & Paul, Inc., they immediately lose all of their speech rights?”

      1. But if Mary is hanging with them, you can’t shut them up any way you try.

        1. I thought Mary died. Or maybe I’m thinking of Jabba the Hut.

          1. Problem solved I guess.

    5. About 99% of the anti-CU commentary I’ve read indicates that the author has given absolutely no thought to what “corporate personhood” actually means in a practical sense. All they saw was “big corporations can buy elections!” What it would actually mean in practice to declare that corporations are not legal persons completely passed them by.

      Never mind that most of the CU decision was not actually about corporate personhood. Most of the decision hinged on the fact that Congress was trying to regulate political speech based on who the speaker was, and the 1st Amendment is pretty clear about Congress not being able to do that. You might think “liberals” would be able to understand that reasoning, but again, 99% of them got stuck at “but now big corporations can buy elections”.

      1. 99% of them got stuck at “but now big corporations can buy elections”.

        They have an emotional reaction, rationalize an excuse, and then the thought process stops completely.

        1. You say that like the thought process ever started.

      2. Justice Breyer’s dissent was probably the stupidest thing I’ve ever read from SCOTUS judge.

        He basically said that Congress can trample the First Amendment since it has a “compelling interest” in avoiding the appearance of corruption in politics.

        Never mind that nothing in the phrase “CONGRESS SHALL MAKE NO LAW” allows for such an exception as to prevent an appearance of corruption.

        1. The other thing is that if a corporation spending money on an election creates the “appearance of corruption” doesn’t pretty much anyone saying anything create the same appearance, if Congress decides it does?

          1. The only reason there’s an appearance of corruption is because 100% of the elected officials are as corrupt as the day is long.

          2. I think the point is that independent ads can be effectively the same as campaign contributions. Which is sort of true. But so what? Free speech is free speech and free press is free press.

            And how to people fail to see the massive opportunities for corruption when government has such control over what can be said during elections?

            1. If I want to stand to stand on a street corner with a sandwich board saying “Don’t vote Zeb for dog catcher — he’s an evil POS”, that’s perfectly legal; if I want to take out an ad in the paper with the exact same words, that’s campaign finance.

              If I own a newspaper and print an editorial pointing out how Zeb is a POS and shouldn’t be elected dog catcher, that’s perfectly legal; if I don’t own a newspaper and pay for the same words I would have used in the editorial to be a full-page ad, that again is campaign finance.

              It’s really schizophrenic and makes no sense.

      3. If they hate something or someone, that person is not deserving of 1A protections. It really is that simple. Pretending that integrity or thought factors into this in any way is delusional.

      4. The actual facts of the case are particularly appalling. Some people formed a corporation and made a movie attacking a politician. The typical prog actually believes that the first Amendment protects the right of someone to get government funding to make a painting showing showing Jesus in a gay S&M scene but don’t think it protects the right to make a movie criticizing a politician.

        1. don’t think it protects the right to make a movie criticizing a politician from their TEAM.

          ftfy

          Remember, it’s all about principals, not principles.

        2. Incorrect, John. They don’t think it protects the right to make a movie criticizing one of their politicians.

        3. Not just the typical prog, but constitutional scholar Obama himself thinks that.

        4. Maybe we’re not using the right terms. Because CU is actually about CENSORSHIP, which progressives supposedly oppose. Because the case was about whether someone could show a movie. How simple is that?

          But my prog friends don’t actually know enough about the case to even understand that.

          1. That is an interesting point. I bet most of them think it involved some evil shadowy corporation giving secret money to some campaign instead of it involving people wanting to make and show a movie promoting their political beliefs.

      5. I usually take a different tack.

        I point out to the prog who decries corporate speech that the only thing that makes its corrupting influence possible is the scope and power of the government (that they are constantly pushing to expand) it is corrupting.

        I’ve found that it is the rhetorical equivalent of a throat punch.

        I’ve not even had the spittle-spewing rage response, just the sad, stupified look of a lost child.

        1. Democracy to them is a belief they can transform society to their desired preferences through political muscle. This blinds them to the nature of power, and leaves them with a single defense that is as illogical as a Zen koan, The Right People with the right beliefs wield power for the Greater Good so the wrong people with the wrong beliefs must be prevented from obtaining power no matter if we abuse that power to suppress them, given that too is for the Greater Good.

    6. The first amendment doesn’t say anything about who or what it applies to. So the question of whether or not corporations are people is completely irrelevant to this argument.
      I absolutely agree with everything you wrote, but I think that when trying to argue with people who think that Citizens United is bad because of something to do with corporate personhood, you need to make it quite clear that the first amendment doesn’t and never has applied only to individual people. Press gets the same protection as speech and the press has always included corporations.
      I still say it is stupid to frame all of this in terms of speech. Speech, taken literally, is something that only individual people do. Electioneering media is press, not speech. And it should be clear that freedom of the press has always applied to corporations as much as to individuals.

      1. Actually, the First Amendment applies to one entity, and one entity only, the U.S. Congress. The courts have held that under the 13th amendment, it applies to state legislatures.

        It’s a pretty absolute prohibition on the legislatures controlling the mass media or the speech of the people.

        1. 14th, not 13th. Other than that I agree with you.

        2. Well, yeah. I could have phrased that better. It is a restriction on government power, not extension of a privilege to people or citizens. So people, corporations, social clubs, dogs, cats and space aliens all have the exact same rights to free speech and press.

          I’m sure you just mistyped, but “14th”.

        3. I think you could say that states could not regulate speech insofar as doing so deprives people of their due process rights. To me that means they can’t even touch political speech of any kind. I think you could make the case that restrictions on porn and maybe commercial speech at the state level don’t directly affect due process and might be allowed. But that is a long and complex debate.

          Regardless, at the federal level, Congress shouldn’t have the power to restrict anything, not porn, not political speech, not commercial speech, nothing.

        4. You’re all wrong, and tarran is right. It is the 13th. They’re using it to enslave all of us.

      2. But the Amendment says “freedom of speech or of the press”. So even if you think “press” means something other than corporations, corporations still have freedom of speech.

        The really appalling thing is that the Amendment says Congress shall make no law “prohibiting or abridging” the freedom of speech or the press. Abridging, especially when juxtaposed to the term “prohibiting” means Congress shouldn’t be able to restrict it in any way.

        A proper reading of the Amendment means there shouldn’t be any federal porn laws or any restrictions on political speech of any kind. Maybe states could restrict such since the Amendment was intended to restrict the federal government. But no way should Congress be able to do such things.

        The entire body of campaign finance law and federal indecency law is unconstitutional by any reasonable reading of the Amendment.

        1. You obviously are ignoring the Fuck You, That’s Why clause of the 1A.

        2. Yeah, even if you restrict yourself to a completely original, based only on the text interpretation, federal campaign laws and obscenity laws are very obviously prohibited.

          The distinction I try to make with speech/press is because I think it would make a lot more sense if speech were taken to mean literal speech, i.e. a person opening their mouth and speaking and press were taken to mean every other medium of communication. But I don’t think I’m getting very far with that. Still, I think it is a huge problem that a lot of people take “press” to mean professional media organizations and not the media themselves.

          1. I’ve always thought of the press as referring to the physical press, and by extension to things like blogging. Granted, this might cause a problem in not mentioning TV/radio/other media, but that’s what the 9A is for.

            1. The “press” as it was thought of in the 18th Century was anyone with a printing press. It included newspapers, which first appeared in the early 18th Century, and pamphleteers like Thomas Pain. If Pain were writing today, he would have a blog. It takes a whole lot of willful ignorance to think that “press” doesn’t include pretty much anything anyone publishes in any form.

    7. Yeah it’s funny when i ask my lib friends that if corporations aren’t entitled to free speech then i guess unions can’t do any protesting as they are not “people” either as they are united under a banner term “union”. Then comes the avoiding looking like a hypocrite dance which is always fun to watch them do.

  3. Meh, weak sauce, and who cares? Those are some old, dead white men there, and what they may or may not have thought hardly matters today. The Constitution (RIP) is a Living Document?, and must reflect the realities of today.

    Hence the endless efforts to tie everything distasteful about the political right to the Koch Brothers.

    And the reality of today is that “everything distasteful about the political right” IS due to the Koch Brothers?.

    I blame Bush.

    /heapin’ pile o’ DERP

    1. …and I actually DON’T care what someone (these three or anyone else) might think about Citizens United. The rest – well, DERP.

  4. OT, since it seems appropriate here:
    Moonbeam says CA is OK to other dems; other dems think he’s just ducky! (unfunded liabilities are not discussed in polite company)
    “Brown touts California ‘comeback’ in State of State”
    http://www.sfgate.com/news/art…..165571.php

  5. Citizens United is the “Durin’s Bane” of the modern Left.

    1. Along with guns I feel it is the one issue that clearly and incontrovertibly dispels the notion that there is anything “reality-based” about Leftist ideology.

      The conspiracy theories they peddle about class enemies like the Kochs and Justice Thomas and Citizens United is just flat out bastshit insane.

      1. It’s like a litmus test, or something.

      2. The problem is that when a cult gets as big as TEAM BLUE, it ceases acting like a fringe cult and starts fucking up everything.

  6. Appeal to authority.

  7. Meanwhile our fucking asshole of a governor wants a public campaign finance fund

    1. Because the various reprobates guilty of bribery and expecting sex from their female staffers as a condition of employment would totally not do that if they were not under so much pressure to raise campaign funds.

  8. Indeed, too often, complaints about Citizens United are really complaints about who is making independent expenditures.

    This the key point to understanding Progressives: they are on the side of the angels, therefore everything they do is good and noble (for recent example, see defense of Wendy Davis, which can be summed up thusly, “criticizing a woman for lying is sexism.”). Everyone not a Progressive is evil and stupid. There is no principled opposition to Progressivism. You must be a dupe or a sinister agent in the pay of some shadowy overlord (Newt Gingrich, Tom Delay, Dick Cheney, Karl Rove, KOCH BROS., Emmanuel Goldstein, etc.)

    1. Of course, it’s only criticizing a woman on their team. Women not on their team are engaging in false consciousness, and are even worse than male opponents of progressivism.

  9. The Progressives believe that the average voter is too dumb to make the “right” and “informed” choice when it comes to elections so the government ought to limit contributions and speech.

    It’s all about government control.

  10. Ahh no. Bzzzzt! Plot Hole!

    A corporation is not a “group”. The money a corporation wields even less so.

    It is just a big pile of money, tapped from all of their customers, using all of their employees, but owned and controlled by only one person or a very few people.

    Neither the customers nor the employees are there for the purpose of making a political statement, nor did they agree to have their jobs or purchases do double duty as political statements.

    A big pile of money that was tapped from a lot of people, by paying a lot of other people to do it, is not itself a person. It’s just a pile of money. It has no opinion of it’s own. It has no self interest of it’s own. It has no ability to judge fairness or ethics of it’s own. It’s just a form of power or a tool like a hammer or a gun or electricity or fire.

    If it’s perfectly ok and fair for one person to wield a big pile of money to coerce policy, which affects everyone, to go *their* way, then it must be just as fair for someone else to use a big gun to coerce policy to go *their* way, right?

    1. Freedom of association means you can also disassociate from that group.

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