January PFD "Pro" Analysis

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January PFD "Pro" Analysis

Postby lsabino » Tue Dec 04, 2012 3:32 pm

Today, we’re tackling the fresh-off-the-presses January Public Forum Debate Topic:

Resolved: On balance, the Supreme Court decision in Citizens United v. Federal Election Commission harms the election process.

The Citizens United v. Federal Election Commission (we’ll refer to it from here-on as, simply, Citizens United) decision was a Supreme Court decision released in 2010. In a narrow 5-4 decision, the Court held that political spending is speech protected under the First Amendment of the U.S. Constitution. Post-Citizens United, corporations or unions are free to spend money to support or denounce candidates in elections. They cannot make direct contributions to campaigns to fund their activities, but they may make statements in advertisements or other media about candidates for office.

Today, we’re going to discuss the “pro” side of the resolution.

1. Corporate control causes undue corporate influence over the election process.
This argument is contextualized by Peter Rothberg in a piece published in The Nation:
Peter Rothberg, “The Story of 'Citizens United' vs. the FEC,” The Nation, March 2, 2011.
And the results of the 2010 election bore out progressive fears as corporate-front groups flooded the electoral zone with massive contributions to reactionary Tea Party candidates. In fact, as Leonard's film makes clear, the kind of independent groups that corporations are now allowed to support spent $300 million to influence the 2010 midterm elections, more than every midterm election since 1990 combined.


This is a persuasive “pro” statistic -- it illustrates the extent to which the election financing landscape is shifting. This seems to support the notion that election politics are changing due to the ruling, which is a basic argument but also one which the pro will need to support persuasively in order to win internal links to many of their “practical concerns outweigh theoretical rights” arguments.

2. Citizens United causes political cynicism and apathy.

There are several persuasive arguments for this claim. Jeffrey Rosen outlines one in Politico:

Jeffrey Rosen, “Citizens United v. FEC decision proves justice is blind – politically,” Politico, January 25, 2012.
The 5-4 majority decision in Citizens United, written by Justice Anthony Kennedy, was remarkable for its combination of judicial overconfidence and political cluelessness … the most blinkered sentence in the opinion was surely Kennedy’s sonorous prediction that the “appearance of influence or access” by corporations on the political process “will not cause the electorate to lose faith in our democracy.” Kennedy’s prediction has proved dramatically wrong. The Citizens United decision unleashed super PACs, the now ubiquitous corporate-funded groups that spent more than $300 million during the 2010 midterm elections. This massive increase in corporate spending led to a spike in political cynicism … .”


This argument is common and relatively basic: the idea that people will become increasingly cynical about the political process if they believe that their elected officials are, in essence, controlled by corporations with access to more capital than they could ever reasonably hope to acquire. This is devastating to democracy because democracy only works when people believe their opinions count and are being represented. A deluge of corporate funding creates the perception (correct or not) that politicians aren’t interested in the average voter’s opinion and that their vote may not count.

Rob Goodman and Jimmy Soni, in an interesting article comparing political spending unleashed by Citizens United to the deluge of campaign spending that imperiled the Roman Republic, explain that this process is particularly insidious because it’s not necessarily about actual corporate influence; it’s about the appearance of influence. Thus, even if the con wins arguments that the statistical incidence of actual money-contribution is low or insignificant, the perception is that the electoral process has been compromised.

Rob Goodman and Jimmy Soni, “How Political Campaign Spending Brought Down the Roman Republic,” Slate, November 26, 2012.
How much democratic faith do Americans have today? How many liberals think George W. Bush won in 2004 because of electronic voting shenanigans in Ohio? How many conservatives think Barack Obama won in 2008 thanks to ACORN, or in 2012 because of handouts to the 47 percent? Unlimited money in politics adds one more cause for doubt, perhaps the most powerful of all, to a list that has grown in recent years. How long until we have a presidential election in which a dangerous percentage of Americans view the final result as illegitimate on account of money? On some level, Citizens United was right. It’s not bought influence that’s deadliest to our politics—it’s the appearance of influence. We can debate dueling First Amendment readings and the real power of super PACs all we’d like; but here is a case where public opinion, on its own, should be decisive. If a loss of faith becomes wide and deep enough, the question of whether or not we are right to lose faith becomes academic. The loss is destructive either way. Just ask Rome.

Further, recent events prove that faith in democracy is at a relative low in the United States. Citizens United could possibly be the straw to break the camel’s back. The impact, as they describe in the article, is potentially widespread. As in Rome, those convinced of the illegitimacy of a candidate are unlikely to respect the authority of government, up to and including engaging in civil war. This is, of course, an extreme case, but (at least according to the authors) not one without historical precedent.

3. Citizens United allows corporations to spend peoples’ money on causes with which they may not agree.

David Kairys, “Money Isn’t Speech and Corporations Aren’t People,” Slate Magazine, January 22, 2010.
In Citizens United, Justice Kennedy discusses business corporations as if they were clubs or political associations with political viewpoints and elected leaders. But corporate managers don't function as representatives or employees of shareholders, who have no say, no shared political views, and no expectation that their investments will be used for political ends …. Increasing the constitutional rights of corporations beyond their business purposes is really about increasing the rights and power of corporate managers. Government has enabled corporate managers to control huge accumulations of wealth without any personal risk—an arrangement that contributes to wild, bubble-producing economic swings and collapses. Citizens United invites that arrangement directly into politics and elections.


This is another interesting argument – that the Citizens United decision:

1. Allows corporations to make political statements using investor money without their knowledge. With the decision, a liberal person could theoretically invest in a conservative company and have their cash fund ads advocating policies with which they disagree. Additionally, since there are no requirements for those expenditures to be reported, the investor may never know.

2. This empowers corporate managers to use money that isn’t their own to make their own political statements. This gives some individuals a disproportionate amount of risk-free power to influence policy (which is not so democratic, considering the average citizen needs to spend their own money to engage politically, not investors’).

4. Citizens United potentially allows undue foreign influence in U.S. elections.

Along similar lines to the shareholder argument is another issue highlighted by Jason Linkins in the Huffington Post,

Jason Linkins, “The Supreme Court’s Citizens United Decision is Terrifying,” Huffington Post, March 23, 2010.
A very large percentage of U.S. corporations are owned by foreign persons or entities. In 2006, USA Today reported: "Nearly one in five U.S. oil refineries is owned by foreign companies. Foreign companies also have a sizable presence in running power plants, chemical factories and water treatment facilities in the United States. … I'm not trying to stoke zero-sum xenophobia, here. The idea of foreign persons or entities seizing -- by judicial fiat -- such a dramatic advantage in terms of influence over the American people seems to me to be, as they say, less than ideal.


An important underpinning of democracy is the idea that citizens should have control over the matters that concern them in their homeland. Individuals outside a country should, theoretically, not share that control because issues that concern individuals in one country may not concern another. In point, if a company owned by a foreign entity would benefit from laws that would allow them to dump waste, damaging the local environment, they could easily lobby for those laws because they wouldn’t have to live with the aftermath. Democracy is about self-government and individuals should have a say in laws because they affect them.

Citizens United opens the door to foreign entities participating in the U.S. political process by allowing corporations free speech rights. Those with foreign investors could theoretically influence the election, which Linkins argues is destructive to democracy for the reasons above.

5. “Corporate personhood” is a bad and dangerous standard to apply to U.S. jurisprudence.

David Kairys explains,

David Kairys, “Money Isn’t Speech and Corporations Aren’t People,” Slate Magazine, January 22, 2010.
The other basic theory supporting the ruling in Citizens United—the court's claim that, for some purposes, corporations are constitutionally, if not actually, people—comes out of the long history of the development of corporations. But the extension of corporate personhood to campaign speech is a controversial innovation of the conservative justices over the last few decades. Corporations needed some rights usually reserved for people to function as legal entities, so that they could, for instance, make enforceable contracts and sue or be sued. But despite the common cultural personification of corporations—we can easily say "GM was embarrassed today"—they obviously don't and shouldn't have all the rights of people. For example, they don't have the right to vote.


Kairys is arguing that the personhood principle is fairly nonsensical because corporations do not and should not have the right to vote, therefore it’s illogical to allow them meaningful participation in elections. Rather, their rights should be limited to only those that are necessary for their functioning as legal entities and for consumer protection.

An article in The Nation expands upon this premise, arguing that:
The Nation, “Democracy Inc.,” February 15, 2010.
By awarding to corporations the rights of citizens when it comes to electioneering, the Court's decision in Citizens United v. Federal Election Commission goes against the intent and understanding of founders like Chief Justice John Marshall, who referred to the corporation as an "artificial being, invisible, intangible"; and Thomas Jefferson, who warned almost two centuries ago that America must "crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country." Dissenting Justice Ruth Bader Ginsburg spoke as a strict constructionist when she declared during oral hearings on the case that "a corporation, after all, is not endowed by its creator with inalienable rights." Unfortunately, the majority dismissed Ginsburg's wise counsel and issued what Senator Russ Feingold, the Wisconsin Democrat who chairs the Constitution Subcommittee of the Senate Judiciary Committee, correctly characterized as a "lawless" decision. President Obama was right on point when he said, "I can't think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections." The High Court's rejection of the ban on direct political spending by businesses, industry associations and their surrogates, and of limits on the amount of money they may spend on campaigning, sets up a dystopia in which our elections--including this year's critical Congressional and state contests--could become little more than Super Bowl games, with corporations spending whatever it takes to sell their products, er, candidates.


This argument goes beyond indicting the mere logic of corporate personhood and explains the consequences of a broad application of this principle – namely that corporate personhood can cause class divisions and effectively disenfranchise citizens (particularly the poor) while insulating corporations from the consequences of their actions.

6. Citizens United advances a problematic vision of free speech that doesn’t adequately account for practical harm.

There are some persuasive arguments against the claim made by Citizens United advocates that the Court’s interpretation of free speech is necessary to preserve the integrity of free speech as a whole. The first, a balancing test advanced by McCain and Whitehouse, argues that there is a need to balance practicality against legal theory. Robert Barnes explains,

Robert Barnes, “Supreme Court faces pressure to reconsider Citizens United ruling,” Washington Post, May 20, 2012.
Those urging the court to grant a full hearing of the Montana case take aim at the most important finding of Citizens United. That was the declaration in Justice Anthony M. Kennedy’s majority opinion that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” “That cannot be so,” the new bipartisan team of Sens. John McCain (R-Ariz.) and Sheldon Whitehouse (D-R.I.) told the court. “Whether independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system; it is a factual question, not a legal syllogism.” The court under Chief Justice John G. Roberts Jr. has incrementally undermined McCain’s landmark campaign finance act by saying it doesn’t meet First Amendment requirements. McCain has in turn been dismissive of a court — without a single member who has ever run for public office — that he says is hopelessly naive about how campaign finance affects the political process.


The Senators are arguing that the court has weighed a version of free speech that is highly theoretical against the practical problem of runaway campaign finance. In theoretical terms, free speech clearly wins out because the thought of any restrictions snowballing out of control is distasteful to anyone who believes in free speech. In practical terms, however, the impact of restrictions on speech is actually so constraining on the free flow of political discourse (and so distorting to elections) that it should be prevented. The theory versus practice question is a critical issue to be explored in this debate.

7. Limits on speech are necessary and good.

David Kairys continues, arguing that practical limits on speech often make sense and don’t spill over to destroy the premise of free speech more broadly:
David Kairys, “Money Isn’t Speech and Corporations Aren’t People,” Slate Magazine, January 22, 2010.
But some perspective: We limit speech—when it has nothing to do with wealthy people spending money—in many ways. (It wasn't protected at all until the mid-1930s.) You famously can't shout fire in a theater. You not-so-famously can't break the theater's rules, including rules about speaking, because you don't really have any First Amendment rights in a privately owned theater or at work. The First Amendment limits only government. And even where it is fully protected, free speech has not been absolute; it's subject to regulation when it undermines basic societal interests and functions, like voting and democracy. In the last few decades, the conservative justices dominating the court have also limited speech rights for demonstrators, students, and whistle blowers. They have restricted speech at shopping malls and transit terminals. Taken as a whole, the conservative court's First Amendment jurisprudence has enlarged the speech rights available to wealthy people and corporations and restricted the speech rights available to people of ordinary means and to dissenters.


That is, the balancing test as argued above is used all the time. The examples here simply illustrate the value of a pragmatic stance on Constitutional rights.

That’s all for today! Join us tomorrow for our “Con” analysis and more exciting PF Debate updates! Writing your case early? Send it for a free critique to lauren (dot) Sabino (at) gmail (dot) com. Happy case writing!
lsabino
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