ReddiquetteAdvisor

Hi Congressman McGovern, thanks for doing this IamA! This is a conversation that many of us need to have. I want to see what you think about this issue in depth.

We have to clear up a number of misconceptions about the ruling that I've seen on reddit, and even heard in your own speech on the House floor.

• Citizens United did not rule that corporations could donate as much money as they want to campaigns. In fact, the court reaffirmed that quid pro quo corruption exists in such a scenario, and it could be regulated and limited by the government. At issue was whether a corporation (in that case, a non-profit) could run its own advertisements advocating for a candidate. The Supreme Court ruled that the government has no interest in picking who can speak and who can't before an election.

• Citizens United did not rule that "money is speech". If the government could limit how much money you're allowed to spend on speech, they could limit speech. This is long-standing precedent, Citizens United did not invent this concept, and even the liberal justices on the Supreme Court agree.

• Citizens United did not rule that "corporations are people". Corporations have always been protected under the first amendment, because the first amendment prevents the government from abridging any speech -- whether it's you, your state, a company, a union or a robot. Here's a list of notable SCOTUS rulings that held corporations have first amendment protections:

Joseph Burstyn, Inc. v. Wilson (1952)

Kingsley Int'l Pictures Corp. v. Regents of Univ. of N.Y. (1959)

New York Times Co. v. United States (1971)

Miami Herald Publishing Co. v. Tornillo (1974)

Cox Broadcasting Corp. v. Cohn

Southeast-ern Promotions, Ltd. v. Conrad (1975)

Doran v. Salem Inn, Inc. (1975)

Time, Inc. v. Firestone (1976)

Linmark Associates, Inc. v. Willingboro (1977)

First Nat. Bank of Boston v. Bellotti (1978)

Philadelphia Newspapers, Inc. v. Hepps (1986)

Turner Broadcasting v. FCC (1997)

If an amendment relies on any of those arguments, it's bound to fail many logical tests. Let's take your proposed amendment, for example:

SECTION 2. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

I don't think you realize that the first amendment does not say "people" have free speech. It says that the government cannot abridge any speech. Here's the language:

Congress shall make no law [...] abridging the freedom of speech

This is an incredibly important distinction and it's what protects the government from censoring, say, the NAACP. A good example would be (conveniently) NAACP v. Button:

The state of Virginia argued that it was not regulating the free speech of individual lawyers and citizens, but rather that of a corporation (the National Association for the Advancement of Colored People), and that the U.S. Constitution did not protect the free speech rights of corporations as strongly as it did that of people.

Your law would take away free speech from any organization, period. It would leave it up to Congress and the States to decide. That is terrifying.

Many of the major misconceptions of Citizens United are addressed in this NYTimes article. When you stood on the House floor and said Citizens United resulted in a "dramatic" increase in corporate spending, you were wrong. It's just not true, for many reasons outlined in that article. And if you look at the data (PAC Track) (NYTimes), you'll see that the vast majority of these Super PACs (even in the last election) are predominantly funded by rich individuals -- who were not affected by Citizens United.

It's important to note that before and after Citizens United, rich individuals could spend as much money as they wanted on their own advertisements. But if you and your friends wanted to pool together to run an advertisement advocating for Obama before the election, it was outlawed by the BCRA (the law Citizens United overturned). Instead you had to form a PAC, which limits how much each individual can contribute to fund the advocacy, and requires you to get your advertisements approved by an 11-prong FEC test, attorneys and the whole nine yards.

It's pretty obvious that such a combination results in rich individuals being the number one source of "electioneering communications" while normal people are highly discouraged. Even the ACLU would be prohibited from advocating for Gary Johnson (if they wanted to) under that law. If the ACLU wanted to publish a pamphlet advocating for a candidate, the pamphlet would not only be illegal to distribute but ACLU would be subject to criminal penalties. These restrictions exist in no other area of the law with regards to speech, it's rather unprecedented.

The ACLU, in fact, agrees with the Citizens United ruling and has submitted many comprehensive briefs in support of it.

Quite frankly, these campaign finance laws only serve politicians who want to secure their re-election. Effectively, they want the official campaigns to have a monopoly on advocacy, meaning that the official campaigns get most of the donations. If a union disagrees with Romney, they can't tell people why. Meanwhile, the incumbent politician gets the majority of the 'donations', allowing for this type of corruption to exist in the first place.

It's not just limited to television. In the Citizens United oral arguments, the government attempted to argue that it could ban a book published by a corporation (Amazon/Barnes and Noble/etc.) before an election if even one sentence advocated for Obama. In the Citizens United case they were talking about an on-demand cable feature. Naturally, these restrictions scale up to everything from pamplets to blog posts. Indeed, in the ruling they stated:

Today, 30-second television ads may be the most effective way to convey a political message. See McConnell, supra, at 261 (opinion of SCALIA, J.). Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.

People also need to abandon the notion that if the other side speaks more, they will win the election. Karl Rove's Super PAC was an absolute failure, the vast majority of the candidates they sponsored with hundreds of millions of dollars in advocacy ended up losing anyway. The same went for the Koch brothers. You can't speak your way to the office. People will vote in their own self-interest if you give them a free and unencumbered debate. If you allow everybody to put forth arguments, not just the Republican and Democratic party's official campaign committees, you will have a truly democratic system. (You may even get some worthwhile third parties!)

Many other huge contradictions exist in the idea that the government can prevent "corporations" from advocating for a candidate. In the BCRA they excluded "media" corporations from the limit, even though they also fit within the exact description of the "antidistortion rationale" used to justify the law. And why exactly do people on the left want unions to not be able to advocate for a candidate? They consist of, and are funded entirely by, individuals. Yet they cannot advocate for Obama before an election? You call that free speech?

I believe people are smart enough to vote in their own interests, and assess the speech of others as well. If we start down the road of "protecting" people from speech that might change their minds, we could justify insulating the public from debate entirely. This appears to be the foundation of your argument.

I really recommend that people read the Citizens United ruling. Read the dissent too. Google, wikipedia, whatever it takes. You should not play around with Constitutional amendments unless you are absolutely sure.

In fact it specifically reaffirms the right to free speech.

Yes, for individuals. What about organizations like the NAACP? Everything from unions to advocacy groups are corporations. By stripping them entirely of free speech and only giving individuals free speech, only the individuals with enough money to afford expensive ad campaigns can actually get anything done.

In the many rulings I listed, one of them was NAACP v. Button in which Virginia tried to say it wasn't limiting NAACP's individual members, but the organization itself, which had less first amendment rights.

The state of Virginia argued that it was not regulating the free speech of individual lawyers and citizens, but rather that of a corporation (the National Association for the Advancement of Colored People), and that the U.S. Constitution did not protect the free speech rights of corporations as strongly as it did that of people. Brennan disagreed: Corporations, he said, not only have rights equal to that of individuals but a corporation may also assert free speech and free assembly rights on behalf of its members.

If I wanted to team up with some people here on reddit for an anti-SOPA campaign, I'd have to pay for attorneys, set up a PAC and only accept a certain amount of money from each individual. I'd have to ask the FEC to approve my advertisement and if they didn't like it, I could sue them, in which case nothing would be done until after the election. This is something no other entity has to deal with, particularly rich people. And thus, our messages are marginalized.

Citizens United was about corporations (who can be non-profit and consist entirely of individual donors) spending their own money on advertisements. By saying things like "deliver unlimited funds" you conflate the issue with a separate area of the law entirely. Donating to official campaigns is still a highly regulated activity that Citizens United had no say over.

These groups were funding so-called "social welfare" groups before Super PACs came along. These figures have to be totaled and compared, not just listed. Like the NYTimes article I linked to stated:

Legally speaking, zillionaires were no less able to write fat checks four years ago than they are today. And while it is true that corporations can now give money for specific purposes that were prohibited before, it seems they aren’t, or at least not at a level that accounts for anything like the sudden influx of money into the system. According to a brief filed by Mitch McConnell, the Senate minority leader, and Floyd Abrams, the First Amendment lawyer, in a Montana case on which the Supreme Court ruled last month, not a single Fortune 100 company contributed to a candidate’s super PAC during this year’s Republican primaries. Of the $96 million or more raised by these super PACs, only about 13 percent came from privately held corporations, and less than 1 percent came from publicly traded corporations.

http://www.nytimes.com/2012/07/22/magazine/how-much-has-citizens-united-changed-the-political-game.html?pagewanted=all&_r=0

None of the statistics available on everything from PAC Track to the Sunlight Foundation support this "dramatic" figure you're speaking of.

I do remember you and I'm glad to hear from you again. I also await to see what he has to think about these points, hopefully I get a more detailed assessment of the arguments. I would love to change my mind on this issue, I seriously would, I have tried to do that for a year now and no argument has been compelling enough.

Do you have an alternate explanation for the explosion in spending?

In the NYTimes article I posted, they explain this rather brilliantly:

None of this is to say that Citizens United hasn’t had an impact. Gross and others point out that in the era before Citizens United, while individuals and companies could still contribute huge sums to outside groups, they were to some extent deterred by the confusing web of rules and the liability they might incur for violations. What the new rulings did, as the experts like to put it, was to “lift the cloud of uncertainty” that hung over such expenditures, and the effect of this psychological shift should not be underestimated. It almost certainly accounts for some rise in political money this year, both from individuals and companies.

Even so, the Supreme Court’s ruling really wasn’t the sort of tectonic event that Obama and his allies would have you believe it was. “I’d go so far as to call it a liberal delusion,” Ira Glasser, the former executive director of the A.C.L.U. and a liberal dissenter on Citizens United, told me. Which leads to an obvious question: If Citizens United doesn’t explain this billion-dollar blast of outside money, then what does?

The article is worth a read top to just-about-bottom.

This is a pretty good summary of the convoluted tax issues that arise. But the great thing about the Citizens United ruling is it affirmed the right of Congress to impose strict disclosure laws to prevent exactly what you're speaking of. From the majority opinion:

The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.