Some late questions about Citizen's United.

Ok, so I’m admittedly a bit late to the party on this, but I’ve only really become interested in politics since Trump’s appearance on the stage, so forgive me if I dig up old issues. I’ve got some questions about Citizens United that should probably be answered before I decide to join some militant resistance group dedicated to overthrowing the government and burning the Constitution and common law.

If the court majority believed that First Amendment rights trumped (sigh, must he insinuate himself everywhere?) any potential for corruption, I would understand, if not agree, with their logic. But they seem to argue that corporate expenditures simply don’t lead to corruption. Now I’ve read that critics of the decision believe that the majority’s definition of corruption as “quid pro quo” is too narrow, but it seems to me that, even with that definition, corporate expenditures can give rise to corruption.

In the majority opinion, Justice Kennedy argues that “independent expenditures,including those made by corporations, do not give rise to corruption or the appearance of corruption.” On its face that seems utterly insane, so I’m wondering if Kennedy is actually insane or is just really shitty at making himself understood. Is he saying that since independent expenditures do not necessarily give rise to corruption (or the appearance thereof) that it’s unfair to to take away the First Amendment rights of those playing the game fairly or does he really see no reason to suspect that independent expenditures might lead to corruption? Or, does he not see a “wink wink” implied quid pro quo expenditure as meeting the definition of corruption? Since Kennedy later says that “the appearance of influence or access will not cause the electorate to lose faith in this democracy,” I suspect he’s just delusional, but I’d like to keep my day job if I’m wrong.

It is important to note that the term “contribution or expenditure” is defined under 2 U. S. C. §441b to be a very narrowly tailored term. Thus restrictions on expenditures by companies or labor unions are restricted only if they are made with general treasury funds of the company or labor union:

So if a contribution or expenditure is not made to a “candidate, campaign committee, or political party or organization” or is not made in relation to " any election to any of the offices referred to in this section or for any applicable electioneering communication" then it is not a contribution or expenditure regulated under the law.

TL;DR version, independent expenditures are not regulated.

So the core question is when does a communication become in relation to “any election” or “electioneering communication”? Short answer: only if the communications specifically states to vote for or against a particular candidate.

So Planned Parenthood can run an ad that says “Protecting women’s right to abortion is important. Senator Able does not support a woman’s right to abortion. Let Senator Able know what you think about this by contacting his office at <phone number> or <address>” and that is not electioneering.

But an ad reading “Protecting women’s right to abortion is important. Senator Able does not support a woman’s right to abortion. Vote for Jane Doe who does support women’s right to abortion and is running against Senator Able in the November election.” is electioneering communication.

This distinction and prohibition on electioneering communication still holds.

In Citizens United the Court took a look at a broader prohibition against communications that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election. §434(f)(3)(A).” This is a prohibition against using corporate funds to say pretty much anything about a candidate during a time frame close to an election.

A company could not mention in a communication* that

even though a statement noting Representative Jones’ visits would be a factual matter and neither advocate for or against the reelection of Representative Jones. Just mentioning the candidate made it a barred communication. And that was just too far.

So companies can mention candidates under Citizens United. They just still have to stick to issue ads that do not expressly advocate for or against the election of a particular candidate. And this restriction only applies if the company uses its general treasury funds to pay for the communication.

If the company forms a political action committee (PAC) they can expressly advocate for or against a candidate or issue.

So though much vilified, Citizens United has a much narrower scope than often proclaimed by its critics.

  • a communication for these purposes is defined under law as a message that “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days”

I don’t want this to be a hijack but I found it interesting that a recent article about Bush 41 pointed out that the founder of Citizens United was the same guy who created the Willie Horton ad and worked on the Clarence Thomas nomination.