Relitigating Stuff Everybody Agrees On
So we got into an argument on the twitters about Citizens United last year and I was told to make it a post. I figured that there wouldn’t be anything worth mining in such a post but I started one anyway. It sat fallow for a good long while… but I got inspired to finish it the other day.
The debate, on the surface, was about the issue of money in politics and the extent to which it is appropriate to try to make money’s influence less toxic.
Which brought us to the argument that appeared to be at the core of things. I’m pretty sure that we all agree with the intention of any given law trying to do any given thing. Yeah, there IS too much money in politics. It IS toxic. We should do something about that.
The problem is…
Well, let’s look at what happened way back when, and I’ll try to just hit the notes that are not in dispute by anybody…
Back in 2002, the government passed the Bipartisan Campaign Reform Act of 2002 (you probably know it as McCain-Feingold). The big thing that McCain-Feingold attempted to tackle was the role of so-called “soft” money in campaigns by limiting PAC commercials in the days coming up to an election. (It did other things too; it made candidates say they approved of ads and it limited the ability of corporations/unions to donate directly to candidates.)
Well, Michael Moore came out with a movie called “Fahrenheit 9/11” in 2004 and it was shown in theaters and everything. Citizens United filed a complaint with the FEC saying that this was in violation of McCain-Feingold. Judges found that, nope, it wasn’t. McCain-Feingold didn’t apply because, ahem, it “represented bona fide commercial activity, not “contributions” or “expenditures” as defined by the Federal Election Campaign Act.”
So Citizens United started making movies. They made a documentary called “Celsius 41.11” and it was all about Michael Moore and all about John Kerry. This movie was prohibited by the FEC because Citizens United was not a “bona fide” film maker.
So Citizens United went on to make more documentaries in an effort to establish themselves as “bona fide” film makers.
2007 rolled around and the Democratic Primary was warming up and Citizens United made a movie called “Hillary: The Movie” and made it available on PPV. They wanted to advertise it and they were told “no” by the FEC because, you guessed it, only bona fide commercial activity was allowed. Not mere political advocacy.
So Citizens United sued. It made it all the way to the Supreme Court. Cert was granted on Nov 14, 2008 (well after not only the primary but also the election). It was first argued on Mar 24, 2009 and re-argued on Sep 9, 2009. And the ruling itself rolled down on Jan 21, 2010.
The ruling was in favor of Citizens United being able to not only show but also advertise their film. Parts of McCain-Feingold were repealed. Not all of it;politicians still have to say “I’m so-and-so and I approve this message” at the end of commercials. (The ban on corporations/unions making direct contributions to politicians was kept as well.) But a lot of it. Films like “Hillary: The Movie” could be shown on PPV within spitting distance of an election again despite the creators not being found to be bona fide documentarians.
There. I think that none of that is in dispute.
What’s wacky is that, until I started researching this, I thought that the Citizens United story started with McCain-Feingold and then leaped to Hillary: The Movie.
I didn’t know that they challenged, unsuccessfully, Fahrenheit 9/11 and then tried to make their own documentary which got slapped down because they weren’t “real” documentarians, spent the next few years making documentaries to establish that they were “real” documentarians and THEN got Hillary: The Movie slapped down.
It’s with that background in mind that I re-read this section from oral arguments in the Supreme Court (and this is the section where you can see the FEC lose the case. You can almost see Justice Souter get paler and paler. (“Mr. Stewart” refers to Malcom Stewart, Deputy Solicitor General, Department of Justice)):
JUSTICE SCALIA: But does “the press” mean the media in that Constitutional provision? You think in 1791 there were — there were people running around with fedoras that had press — little press tickets in it, “Press”? Is that what “press” means in the Constitution? Doesn’t it cover the Xerox machine? Doesn’t it cover the right of any individual to — to write, to publish?
MR. STEWART: Well, I think the difficult Constitutional question of whether the general restrictions on use of corporate treasury funds for electioneering can constitutionally be applied to media corporations has never had to be addressed because the statutes that this Court has reviewed have —
JUSTICE SCALIA: Well, I don’t see any reason why it wouldn’t. I’m saying there’s no basis in the text of the Constitution for exempting press in the sense of, what, the Fifth Estate?
MR. STEWART: In — in any event, the only question this Court would potentially need to decide in this case is whether the exemption for media companies creates a disuniformity that itself renders the statute unconstitutional, and the Court has already addressed that question in McConnell. The claim was made that because media corporations were exempt, there was inequality of treatment as between those and other corporations. And Congress said no, Congress — I mean, this Court said no, Congress can protect the interests of the media and of the public in receiving information by drawing that line. With respect to your —
JUSTICE SOUTER: To point out how far your argument would go, what if a labor union paid and offered to write a book advocating the election of A or the defeat of B? And after the manuscript was prepared, they then went to a commercial publisher, and they go to Random House. Random House said, yes, we will publish that. Can the distribution of that be in effect subject to the electioneering ban because of the initial labor union investment?
MR. STEWART: Well, exactly what the remedy would be, whether there would be a basis for suppressing the distribution of the book, I’m not sure. I think it’s clear under —
JUSTICE SOUTER: Well, does it come within electioneering because of the initial subvention to the author?
MR. STEWART: It wouldn’t be an electioneering communication under BCRA because BCRA wouldn’t apply to the print media. Now, it would potentially be covered by the —
JUSTICE SOUTER: We’re — we’re talking about how far the constitutional ban could go, and we’re talking about books.
Now, I want to point out the second in the middle: “the only question this Court would potentially need to decide in this case is whether the exemption for media companies creates a disuniformity that itself renders the statute unconstitutional, and the Court has already addressed that question in McConnell. The claim was made that because media corporations were exempt, there was inequality of treatment as between those and other corporations. And Congress said no, Congress — I mean, this Court said no, Congress can protect the interests of the media and of the public in receiving information by drawing that line.”
The problem is that media corporations were exempt. Average Joes, even corporate Average Joes, could not get their political messages out. Michael Moore? Well, he was a “bona fide” documentarian. Of COURSE his movie was okay.
And it was this particular distinction that presented similarly to a double-standard that stirred up all of the trouble.
The problem wasn’t with the rules; it was with who was granted exceptions to the rules.
And THAT is why Citizens United was ruled the way it was.
Because, in practice, it didn’t seem to be about money in politics at all… but about picking who would be able to speak on the grand stage and who wouldn’t be.
(Featured image is “Heated Discussion” by MTSOfan. Used under a creative commons license.)
But the government should absolutely tell people they have to employ people who insult their co-workers.Report
At this point, the only thing the government has said has to happen is “discovery”.Report
If Google fired everyone who insulted coworkers, they wouldn’t have any liberal/progressive employees left.Report
Jaybird I want to commend you on this write-up. The myth of Citizens and what it means has long eclipsed the actual facts of the case. The issue was not about corporate personhood as its been portrayed. It was about allowing the FEC to arbitrarily police content. The movie in question is exactly the kind of thing the first amendment is supposed to protect and it’s the issue you’ll notice that critics of the decision stay as far away from as possible: should a regulatory authority be permitted to temporarily ban political advocacy based on ill defined, inconsistent criteria, apparently including who is doing the advocacy? It isn’t hard to see why that’s a problem.
I say that as someone very sympathetic to the argument that we have too much money in politics, too much capture, etc. It’s a cultural problem but the solution to it isn’t to set up some regulatory authority where bureaucrats decide when and what messages are appropriate for the electorate to hear.Report
Here is something I said a million years ago:
There’s a maxim they teach you in law school: if the law is on your side argue the law. If the facts are on your side argue the facts.
The government did a decent job arguing the law here but the facts… well there’s a very good reason they carried the day. That they go so little remarked upon is one of those telling little things about the media, not only with respect to its partisan leanings but also its incompetence at reporting.Report
Great post, Jaybird! There as a lot of stuff I didn’t know about this case.Report
JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?
MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.
JUSTICE ALITO: How about a shirt that says “Parkland Strong”?
MR. ROGAN: No, that would — that would be — that would be allowed. I think - I think, Your Honor -
JUSTICE ALITO: Even though gun control would very likely be an issue?
MR. ROGAN: To the extent -
JUSTICE ALITO: I bet some candidate would raise an issue about gun control.
MR. ROGAN: Your Honor, the — the - the line that we’re drawing is one that is - is related to electoral choices in a -
JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?
MR. ROGAN: The — the Parkland?
JUSTICE ALITO: Yeah.
MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not -
JUSTICE ALITO: Okay. How about an NRA shirt?
MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -
JUSTICE ALITO: How about a shirt with the text of the Second Amendment?
MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be -
JUSTICE ALITO: How about the First Amendment?
MR. ROGAN: No, Your Honor, I don’t - I don’t think the First Amendment. And, Your Honor, I -
CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?
MR. ROGAN: It would be allowed.
CHIEF JUSTICE ROBERTS: It would be?
MR. ROGAN: It would be. And — and I think the — I understand the — the idea, and I’ve — I’ve — there are obviously a lot of examples that — that have been bandied about here –
JUSTICE ALITO: Yeah, well, this is the problem. How about a Colin Kaepernick jersey?
MR. ROGAN: No, Your Honor, I don’t think that that would be under — under our statute. And I think -
JUSTICE ALITO: How about “All Lives Matter”?
MR. ROGAN: That could be, Your Honor, that could be — that could be perceived as political. And I — I think obviously, Your Honor, there — there are some hard calls and
there are always going to be hard calls. And that — that doesn’t mean that the line that we’ve drawn is — is unconstitutional or even unreasonable.
JUSTICE ALITO: How about an “I Miss Bill” shirt?
MR. ROGAN: I’m sorry, Your Honor? I didn’t –
JUSTICE ALITO: “I Miss Bill,” or to make it bipartisan, a “Reagan/Bush ’84” shirt?
MR. ROGAN: Yes, Your Honor, I believe that that’s political.Report
The only explanation that makes sense to me is that Mr. Rogan was an enemy agent who was deliberately trying to lose the case as spectacularly as possible.
Thank goodness that Sotomayor and Breyer were principled enough to withstand his treacherous undermining of the case!Report
Actually, my guess is that they (the bureaucracy) has so subsumed this idea that they get to be the ones who finalize these decisions that they really can’t institutionally comprehend any other argument. If it was still applied neutrally they could get away with doing this, but…Report
It doesn’t get nearly as much discussion as it should but admin law is one of the most pressing and least popularly understood aspects of how our government currently works. The first time I read Chevron v. NRDC I felt like my eyes had suddenly been opened. Not to say that I agree with Clarence Thomas exactly but the ability to delegate authority to administrative agencies highly subject to ideological capture has effectively removed quite a few issues from the political process. It’s also operated to take Congress off the hook and dump power into the executive branch.
It’s how you get situations like the exchange above or the insane interpretations of Title IX coming out of nowhere without any real debate.Report
Absolutely. And with an electorate very divided politically, it is rife with the fever dream of hard political interference.Report
“my guess is that they (the bureaucracy) has so subsumed this idea that they get to be the ones who finalize these decisions that they really can’t institutionally comprehend any other argument.”
And they know that they’re good people who definitely would not use the Death Laser on undeserving targets. And if it got used on the wrong people by accident, well, you can understand their reasoning and they operated by the established procedure so you can’t call them biased, really, I mean, anyone else who acted that way would have got the same treatment, right?Report
I initially thought this was a very well-written parody of the oral argument. I was familiar with the book-banning issue, but the actual transcript appears to be real life imitating parody.Report
“That’s a strawman!”
“No, that’s actually the transcript.”
There are people who then say “holy crap!”
There are people who then say “nevertheless,”Report
Sludge look at all the 2020 candidates back in April, and only one doesn’t want to strike down Citizens United. Ironically, that singular candidate is also the least in need of any corporate contributions because he runs a world class hotel empire.Report
If Citizen’s United had been a narrow decision basically saying, yes, TV stations can show whatever documentaries they want, that’d be one thing. Nobody would even know what it is.
The fact it tore apart the entire campaign finance system is the issue.Report
Sometimes I wonder if Citizens United would still be standing if Fahrenheit 9/11 was blocked from theaters/advertising until November 3rd, 2004…Report
I was glad to see Jesse bring up that point. And disappointed to see you (predictably) ignore that point. McCain-Feingold, like most laws, had a number of provisions, only one of which was actually at issue in the Citizens United lawsuit.
I can’t speak for Jesse or anyone else, but I agree with you that the section at issue, having to do with electioneering within so many days of the election, was rightly struck down. The problem is that SCOTUS, quite uncharacteristically, one might say against precedent, told the litigants to prepare to argue the whole dang law rather than just that provision. And then they proceeded to tear the thing to shreds, opening the floodgates for craploads of cash to enter the system.
They struck down provisions of the law which weren’t at issue in the original lawsuit, something which they basically never do in other circumstances. It’s hard to see that as anything other than nakedly partisan judicial lawmaking.Report
Well, now we’re in the parts of the topic that are not the parts that everybody agrees on.
Would it be controversial to say that it was nakedly partisan enforcement of the laws that got the ball rolling in the first place?Report
Maybe. But if you recall, the FEC is by design a bipartisan body. From Wikipedia:
So it would seem that at least one Republican member would have had to sign on to both the Moore and CU decisions. Doesn’t mean the decisions were correct, but you would need to do some work to establish that they were nakedly partisan. I’m persuadable. Persuade me.Report
Well, can you define why someone who makes documentaries with a right-wing POV wouldn’t qualify as a documentarian when Michael Moore, by contrast, does?
I ask because, if you can’t, we’re in a place where we have to figure out why the FEC did.Report
Nope. I can’t explain it. The same way I can’t explain the difference between the NYT and a blogger wrt to who qualifies as “the Press” or what qualifies as a “sincerely held religious belief” vis-a-vis the Hobby Lobby decision.
I’m just pushing back on your assumption that those decisions were nakedly partisan in intent. Perhaps in effect, like disparate impact in civil rights cases or something.Report
Well, earlier, you said It’s hard to see that as anything other than nakedly partisan judicial lawmaking.
I now have a feel for how difficult it is for us to see some things compared to how difficult it is for us to see others.
Yeah, we’re no longer in a places where stuff isn’t in dispute.
As such, I wouldn’t want someone with similar difficulty seeing things in charge of who can and can’t buy ads.Report
You’re not engaging in good faith Jaybird, and quite frankly it pisses me off. I already stipulated that I agree with the decision wrt to the documentaries. I even said so in BOLD face ffs. I then explained what about the decision I objected to, the part of the decision that had nothing to do with documentaries but unleashed gobs of dark money.
Now you’re pretending that I didn’t actually type any of those words. God you’re a piece of work.Report
The unleashed gobs of dark money *ARE* a problem.
But we already established that the laws are enforced… well, shall we say, they were enforced in such a way that it doesn’t appear that they were enforced in good faith.
And I’m supposed to pivot from being in a place where everybody knows and everybody agrees that the law enforcement of the documentaries was bad… and when I switch to talking about ads (not documentaries! ads!), suddenly I have to re-acknowledge that you agreed about the documentaries.
Fine. I acknowledge that you agreed about the documentaries.
Can we talk about buying ads yet?
Can we talk about whether we’d expect the laws to be enforced in the same ballpark of “poorly” as the documentaries were or is that not a good faith question either?Report
Okay, I’m going to go to bed. But the one point I definitely want to make before going to bed is this:
As we go through McCain-Feingold and say that the SCotUS got rid of too much, my position on anything that is speech-adjacent (which includes not only documentaries, but ads for documentaries, and not only ads for documentaries, but ads for both issues and politicians), then the law was bad and should have been repealed (and not because money in politics isn’t toxic… IT IS).
It’s because the enforcement of the law is likely to be just as lopsided as it was for the documentaries that, indeed, *EVERYBODY* agrees was handled very poorly.Report
Why is America the only advanced liberal democracy in the world that can’t handle such things as not letting gobs of unaccountable dark money flood the airwaves up until Election Day?
I do agree, in one sense – if we somehow magically passed campaign finance laws close to anywhere close to the world (and again, my position on CFR is like health care – close your eyes and throw a dart at a list of countries that include Western Europe, Japan, and Canada. Whatever country it lands on will be better), when Republicans were in office, they’d disproportionately use the law against left-leaning groups and politicians and people who think Both Sides are Bad would conveniently ignore when Republicans do it will then act like it’s the end of the world when Democrats while in office, actually try to enforce the law.
So yes, the current fact we have a populace where 40% would support anything the GOP does as long as it hurts the Democrats and another 5-10% of the populace who doesn’t like the Right, but still has issues because a guy in a Che Guevera t-shirt was mean or snarky to them in college or high school, so they always give a benefit of the doubt to the Right is an issue.Report
Other first world countries don’t have a 1st Amendment. They’re also small, culturally monolithic places, where consensus is much easier to come by.
Even then they have their issues. Germany criminally charges comedians for jokes about foreign leaders, the UK has an insane tort system constantly used to chill completely defensible speech, etc. Virtually all of those countries, except maybe Canada, are currently suffering with their own various crisis of legitimacy in their systems, particularly with respect to capture of democracy by elite interests. We’re hardly alone with this.Report
Why is America the only advanced liberal democracy in the world that can’t handle such things as not letting gobs of unaccountable dark money flood the airwaves up until Election Day?
If I had to guess, I’d say it’s because our attempts to pass laws that did this in accordance with how other countries did it immediately resulted in the enforcement of the laws saying that documentaries that criticize Republicans are okay but documentaries that criticize Democrats are bad and, when asked to defend the law in front of the highest court in the land, the arm in charge of enforcing the laws pointed out that they could ban books too.
If I had to guess.Report
Because there’s no non-arbitrary way to draw a distinction between documentaries and ads. The FEC tried to do so by distinguishing between a “bona fide” documentarian like Moore, who’s been making documentaries for decades with someone who throws together a hit piece and calls it a documentary. You just can’t make a good legal argument for that distinction.
All I’m pushing back on here is the notion that a pointedly partisan balanced FEC, operating during the GWB years, put a thumb on the scale against conservatives. At least one Republican would have had to vote for both of those decisions.Report
I imagine that they were two different ones.
Get the Libertarian-leaning one on board for the first one. “Hey, it’s a legit movie! You don’t want to censor movies, do ya? Michael Moore has been making movies for years! First Amendment!”
And you get the hard-nosed one for the second. “Look, this is just a hit piece. This totally goes against the spirit *AND* the letter of the law!”
Now, if it was the same guy in both cases, then I would have no way to explain it.Report
But it wasn’t repealed in toto. Simplifying, there were three parts to the law (more actually, but simplifying) A, B, C. A is the part that the CU lawsuit was about and we all agree with that should have been struck, B is the part that SCOTUS decided on their own apparently to go after even though it wasn’t at issue in the lawsuit, and C was left intact (individual contribution limits and such).
I’ve never seen, and you certainly haven’t offered, a convincing rationale for why striking B was necessary as an adjunct to striking A. It wasn’t that they decided that the entire law had to go, because C remains in effect.
So when I say the CU decision sucks I’m specifically talking about B.Report
To give an argument of the form that you used earlier, I will quote myself in the original article:
“I’m pretty sure that we all agree with the intention of any given law trying to do any given thing. Yeah, there IS too much money in politics. It IS toxic. We should do something about that.”
So I agree with what the law was *TRYING* to do.
Hell, I agree with what the Prohibition of Alcohol in the 18th Amendment was *TRYING* to do. I agree with what the War on Drugs was *TRYING* to do.
It’s when you get into what the enforcement of these laws actually entails that I’m suddenly saying “hey, wait, wait, wait… I didn’t agree to this.”
So, please, explain what you don’t like about B and make sure that it’s not speech-adjacent and let’s see if we can’t come to an accord.Report
bah, never mind, that comment was wrong.Report
Just out of curiosity what provisions were held unconstitutional that you believe shouldn’t have been?
I wouldn’t say the law was shredded. Contribution caps, registration, and disclosure requirements remain in effect. Most states also have ancillary laws and it isn’t even clear to me that the ‘dark money’ in political advertising is the threat its portrayed as. The Obama and Sanders campaigns have done quite well with small individual donations for example.
To me money-funding-speech is less the issue than influence through access, a more nebulous, harder to regulate concept. Money certainly seems to buy it but I don’t think it’s a simple quid pro quo. It isn’t clear to me that the ability to buy ad space is what gets wealthy corporate interests a seat at the table.Report
As I recall, part of the ruling was that the issue of dark money could be addressed through less intrusive means of disclosure, rather than banning speech. Congress subsequently couldn’t pass a Disclose Act, and the one they almost passed, played favorites, with different rules for different advocacy groups that it would probably have been struck down as well.Report
“they proceeded to tear the thing to shreds, opening the floodgates for craploads of cash to enter the system.”
Incidentally, what elections would you say were damaged by the behaviors enabled by Citizens United? “damaged” in the sense of an outcome where the voters were induly influenced and voted for something demonstrably wrong, harmful, or worse than they might have preferred.
Like, “nobody is SAYING that, nobody is DOING that, you can’t SHOW examples of the harms you say will occur” is a popular rejoinder to concerns about stuff like You Have To Bake The Cake court decisions. So, in that spirit…let’s see the harms.
PS Comey was operating as a government employee and none of the news coverage of Trump was financed by him, so, no, don’t be pointing to the 2016 Presidental Election as evidence of anything.Report
That was hilarious. The government was able to round up Japanese Americans and put them in camps because they illegally obtained the ZIP code information that the Census Bureau had collected?
AOC is the gift that keeps on giving. I wonder if Mr. Hand shared her pizza with the entire history class?Report
If there were parts of Citizens United that were Unfairly Declared Unconstitutional, Congress should work overtime to pass a new law.
“The Ocasio-Cortez-Cruz Bill” that, finally, gives *ACCOUNTABILITY*.Report
So what is AOC’s complaint, that the high court incorrectly declared parts of a plaintiff unconstitutional?
I ask because she’s that daffy.Report
That the ruling of Citizens United were far too broad.
I’m sure, if cornered, she’d argue that the 7-2 parts of Citizen United *MIGHT* have been decided correctly, but there is *NO WAY* that the 5-4 parts should have been decided the way they were.
(Maybe we could hammer out that it requires 6-3 or 7-2 to overturn a law.)Report