Citizens United v. F.E.C

In this hypothetical, you are a U.S. Supreme Court justice faced with a decision on Citizens United v. F.E.C. How would you rule? The important thing here isn’t your ultimate verdict, for or against Citizens United, but how you would approach the legal question(s). What would guide you? What would your jurisprudential philosophy be? What principles would you hold to to guide you in interpreting the U.S. Constitution and, in particular here, its first amendment?

Presumably, your answer would help us predict how you might decide in future cases, as well, so your choice is more than fad or fashion. It should be about how you would go about making the difficult choices in matters of law.

Some possibilities:

  • Originalism (the Constitution is dead, not “living.” What did the founders intend?)
  • Absolutism (if it says “no law,” it means no law. Period.)
  • Utilitarianism (a means to an end, so judge the end)
  • Balancing theory (and preferred position balancing theory) >> scroll down to the entry on preferred position
  • Meiklejohnian theory, from Alexander Meiklejohn, that advocates free expression is essential to accomplishing a greater good, which is democracy. A form of utilitarianism, arguing that the First is valuable in promoting self-government through “the voting of wise decisions.”
  • The priority of “the marketplace of ideas,” or that a free trade in ideas will ensure the emergence and acceptance of truth as it competes with untruth. Our hero Oliver Wendell Holmes gave this idea great currency.
  • Others?

That we can ask this question and potentially have so many “right” answers points to Habermas’s statement that the law exists between facts and norms, and that it is more important for the law to claim validity than either facticity or its practice as a social norm.

I eagerly await your answers to see who on the current USSC (.pdf download of justices’ bios) are your kissing cousins (at least ideologically).

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18 Responses to Citizens United v. F.E.C

  1. Just read this good piece in today’s NYTimes on our celebrated dissenter in Citizens United, John Paul Stevens: http://www.nytimes.com/2010/01/26/us/26bar.html

    A pull quote:
    “The rule announced today — that Congress must treat corporations exactly like human speakers in the political realm — represents a radical change in the law,” he said from the bench. “The court’s decision is at war with the views of generations of Americans.”

  2. I just ran across this golden nugget of a quote. Read it with Citizens United in mind:

    “The pressure coming from the government and big business [!!] to enforce conformity of thought concerning the war and politics goes against everything this country is about — namely freedom.” — Bruce Springsteen

    Here’s a pointer to a short video of Stanford law professor Larry Lessig reacting to the verdict. I look to Professor Lessig for guidance on issues like this one. He is an advocate for freedom of information, arguing before the Supreme Court against the copyright extension in the Eldred case several years ago.

    And just for funsies, the Daily Show’s take on the decision, from John Oliver.

  3. Jaci says:

    My ruling would be based on the notion that everyone deserves an honest chance. While political campaigning might never be said to be an honest activity, everyone deserves a chance to engage in it without bucket loads of money shutting them out day one. Big businesses can do a lot financially for a community or organization, but in a political campaign it should never come down to who has more money to put up more posters, rent venues, and in the presidential case, buy nice clothes. I’ve always thought that the mass of posters and tv commercials got in the way of the actual issues at hand. If money didn’t come into play in campaigns, then people could not rely on who’s name they remember seeing at the stop sign. People would have to vote based on the issues! WOW. In this case, I feel like the Supreme Court all but encourages big businesses to throw money at a candidate. It is almost ironic that they would encourage millions to be spent, knowing that it only encourages the candidates campaign to be more of a performance than an actual representation of the big issues at hand.

  4. Samantha H says:

    In the case of Citizens, I think I would attempt to use “ad hoc.” I’m all about context. I believe in putting things, people, situations, etc. in context before really understanding them. Therefore, with Citizens, I would want to know what does the written law say on the subject? What do precedent (stare decisis) and common law say? Then I’d like to look at the social trends at the time. I like to think of law as “living,” that it is meant to continually protect the people and society as they evolve. By understanding and answering these questions, the case becomes unique unto itself. While it may have similarities to previous cases, the point is that this case is seen on its own.

    I suppose it’s “judicial review”-like to want to include a social component that would help determine the outcome. However, if the law is for the people, than why shouldn’t thinking of society as it is now be part of the decision? Probably because stare decisis would be run amok. Let’s also be glad I’m not your lawyer.

  5. KLavey says:

    For many Supreme Court decisions, I would be an advocate for the ‘market place of ideas’ with a combination of Meiklejohnian theory, “voting of wise decisions.” I also would have to agree with some “ad hoc” to a degree because it tends to be a trend in our history. Many cases are uniquely their own, a case by case basis, balancing act can be appealing in certain situations. However, I believe free expression is essential for our government, as well as the idea that hearing both sides and minority opinions are appropriate in a democracy. I would consider the market place of ideas because it holds similar to a capitalistic ideology, which I believe in, and those who developed the idea. Yes, many have said it doesn’t work and it is only a theory, but I feel it is sounder than other options. I may not believe in corporations having (what looks like) more power than individuals but based on the market place of ideas approach, there should be a free trade of ideas for corporations as well as for individuals. Again, all freedom of expression cases should be decided with the market place of ideas intent because it is a “free and fair competition of ideas” because “truth will be discovered or at the very least, conceptions of the truth will be tested and challenged.” The Citizens United v. FEC may not be fair in the eyes of Americans but the justices should apply the market place ideas theory.

    I’m not stating how I feel about the case but I do agree with others out there that this has been a “radical” change, and can see both sides of the arguments .

  6. k8bayern says:

    The experience that I have had with politics in general just makes my head swim. Every election to me, appears to be who has more money and appeal to their own target audience. Each candidate spends considerable amounts of money to outdo their opponent, ultimately allowing money to speak for them. This is where I mostly become divided in my own thinking. Part of me thinks that yes, Citizens United is right and there needs to be certain restrictions laid in place so that the right candidates are chosen for their beliefs and not their money. But I also battle my thought an agreement with Citizens United and feel that candidates may use their resources to portray themselves in the best way possible, though I am not in such big favor of businesses coming into support candidates in financial ways. I do not believe that the law is really dead, or should the law be read as strictly “that’s what it says, that’s what we’re doing.” I think mostly that in Citizens United v. F.E.C. is a unique case that we’re going to start seeing similar problems with especially because campaign ads are changing and politicians are having to change with the times. Thus changes the dynamics of campaigning. I think that both sides have good points, while both have their drawbacks I want to find the balance for both.

  7. Hubris says:

    The real question that wasn’t asked in this case is whether or not money has destroyed the political process as we know it. It almost seems to me that it has. When I see a government who owes 14 trillion dollars, 50% of which is held overseas (meaning that the interest we are paying on that debt is not in the Keynesian fashion spurring growth here in America which was the idea but we are funding other governments) I am convinced that money has corrupted the government. I recently watched a C-SPAN video on the debt reduction task force (unofficial) which flatly asserted that money funneled to both the Military Industrial Complex as well as the Medical Industry had increased at exponentially and that it was destroying this country. Now why would the government which originally had very small budgets in relationship to the millitary (even during WW1 and WW2) and the medical industry suddently increase in such a manner? Why would 24 states and the federal government pass laws so that corporate interests already so entrenched could not control elections as well? Honestly I see the Supreme Courts decision to be more of a concession that we’ve already lost to the corporation more than anything else. They can hide behind the constitution — which they did: “Although the First Amendment provides that “Congress shallmake no law . . . abridging the freedom of speech,” §441b’s prohibitionon corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.” Sure I am all for the textualist reading of the constitution expounded by Scalia, and fundamentally I agree. BUT COME ON! How much more evidence do we really need before we believe that corporate interests are far too entrenched? If I was on the Supreme Court I would absolutely have a texualist view of the constitution when it comes to Church and State issues I look to the founders (“A wall should be erected between church and state … Jefferson) but I also can read the constitution and see that “shall make no law establishing a religion or prohibiting the free exercise thereof”. And yet the more recent back lash the supposed culture war is nothing compared to how much corporate interests have taken over politics. The Supreme Court has to take into consideration the fact the world is grey. This black and white, the constitution says free speech…. were clearly violating that if we dont allow corporations which are people to spend their money in favor of one person or another… clear and simple. However, it isn’t that simple and everyone knows it. In this case I would be compelled to keep out corporate interests not because I don’t believe they equally have a right to free speech but because their supposed equality is ripping away the right of the poor individual to a say in the process. And thats the real question.

  8. LHannel says:

    In deciding on the Citizens United case, I would refer to the absolutism approach. As a U.S. Supreme Court Justice, I take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as under the Constitution and laws of the United States. So help me God.”

    Therefore, I would approach this case as I would any other by asking, “What does the U.S. Constitution allow/disallow?”

    As a Supreme Court Justice, I do not have the authority to make law based on what I personally think is right or fair, but instead, I have the authority administer the law based on what the law actually says. If the law creates a “Suck Fest” (for lack of a better term) for its citizens, it is within the authority of the citizens and their legislators to create a better law.

  9. Hubris says:

    Apparently Obama agrees with me and this moment is priceless: http://www.politico.com/blogs/politicolive/0110/Justice_Alitos_You_lie_moment.html

  10. tschneider says:

    The big legal question here seems to me to be about section 203…”electioneering communications” should the courts regulate movies that are about a political candidate even if they never say to vote for or against a certain candidate and if movies are any different than advertisements paid for by profit/nonprofit corporations. As a justice in deciding the outcome of this case I would have to look at previous cases that involved this same type of pretext. For example the Wisconsin Right to Life and apply some of the questions asked then to this case. Some questions that I would ask would be would the ruling in this case be considered unconstitutional when applied to freedom of political speech, does the movie specifically state who to vote for, and should the movie apply under the same restrictions as tv ads when the movie is not being forced upon an audience? Will this decision of Citizens United potentially undermine all previous court regulations/decisions made about independent campaign funding sources and what are the consequences that might follow?

  11. Emily W says:

    As we discussed in class earlier this week, the reality is…our law is not that old. Cases and situations will continue to challenge the original laws created by our founders. Media will advance, publishers will explore new genres, audiences’ desires will change and law will be faced with new and distinct approaches. I believe that with such a fluid and malleable shift in social norms, a “marketplace of ideas” approach to the Citizens United vs. FEC case is a very democratic and effective approach. Because “facts” will change over time and “norms” will deviate from their tradition, it is even more imperative that we rely on law’s validity foremost. In a ‘free trade of thought’ setting for this case, new perspectives may be exposed and novel theories can influence decisions. While big business has the opportunity to motivate and persuade large groups of people, I think it is extremely important to analyze how much people should be persuaded. How much of that is involuntary conformity?
    As Springsteen said “the pressure coming from government and big business to enforce conformity…” raises a couple of huge red flags. Not only do these masses of power have the strength of conforming the people, but government and big businesses are compared as equals in this statement! Yes, I agree with Justice Kennedy that government should not censor political campaigning to control thought, but how much thought is being controlled when big business founding is mixed in with political campaigns and voters rights? How much more bias are we unknowingly exposed to? I believe this case is just the first of many political, financial and freedom exposures. We are a race who learns through trial and error…perhaps more will be revealed the more we meet these challenges head on.

  12. Kyler says:

    In response to the question of “how” I would go about ruling in a case such as this, I would go with the preferred position approach. Many cases are not so cut and dry as to say “it says this, so it must mean this and only this.” Cases like Citizens United need to be weighed based on their individuality. However, when a case could go either way, with adequate precedent to support either decision, the court should defer to the First Amendment. The Citizens United case should never have been close. It should be obvious that the decision of the Court was an inadequate one. But, in cases in which the Court could go either way, the Court should defer to the Constitution and not to the statute.

  13. James Clarke says:

    To be honest, this is about as foreign of a concept to me as speaking mandarin. As I asked in class, why is there not a system of checks and balances to prevent really unfavorable and unwanted decisions like this from being the “last say”? I shudder to think about if we had a handful of supreme court justices with an agenda one day. However, for the case in hand, I am in agreement that the dissenters are the ones to be praised for the case. The political system as we once knew it is long gone, and it can be discovered with minimal effort just which big business companies own which politicians. The majority in this case only advocated this problem further while limiting even further the rights of the average American citizen. THAT is what the supreme court should be interpreting the constitution for. Much like we in journalism are supposed to minimize harm, the rulings of the Supreme Court should be decided in a fashion that benefits and supports the rights of those that they serve. While the details of the case are still beyond me, as I have not yet taken Media Law, and have really haven’t ever tried to keep up with things like this before now, I am intrigued and look forward to learning more about this process. Though now, it seems, it will be very different than it was a week ago.

    In my opinion, we’re just one step closer to Earth being bought and renamed Planet Walmart.

  14. James Clarke says:

    ps Why does the blog say it is an hour ahead of what time it actually is?

  15. K Beard says:

    I am a strong Meiklejohnian theorist, after studying the theory extensively for my media law research paper. This theory says that political speech is the most important form of speech because it is what leads to a democratic government. In his article “What Does the First Amendment Mean?” Meiklejohn says, “The Amendment means, I am sure, what it says. But there is a sense in which it does not say what it means. At any rate, it does not say it to us unless we practice eternal vigilance in the criticism of our words and meanings.” This means that we must consistently search for the meaning of the First Amendment.

    In this case, I would look at whether or not I believe that campaign spending is a political speech that would enhance democratic government. Obviously the speech is political in nature and campaign financing does fall into that category. So does this movie? I would say that yes, it is political speech.

    Meiklejohn said in his book “Free Speech and Its Relation to Self-Government” that, “What is essential is not that everyone shall speak, but that everything worth saying shall be said.” I would argue that this approach creates a very clear-cut explanation of how political speech should be tolerated as for the greater good.

  16. BMays says:

    I have never really taken the time to think about what I would do if I were to decide. If I were a Supreme Court Justice I would take the absolutism approach so I do as exactly as it says. When Obama said, “to get to work immediately with Congress” to develop “a forceful response,” I would take that as what it literally says.

  17. James attempted to post his photographic creation, a Nascarring of our president, in “salute” of the Citizens United USSC decision. Here it is:

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