Right decision – Not the strongest theory
There is a serious problem with the reaction to the Citizens United decision. It revolves around the lack of critical thinking fostered by our education system. The history teacher I had in eighth grade tended to explain the Bill of Rights from a book he had been assigned in college. So he had neat phrases such as “the Founders did not understand the problems of our changing society,” followed by “the Founders were deliberately vague so that we could reinterpret based on changes in society.”
On the other hand I did have a teacher in eleventh grade (his masters was from Kansas State University where I had planned to get a PhD, but thought better of it) who liked going to original documents. And I had a teacher in college who was a Democrat who talked like Barry Goldwater and assigned original sources. So I have examined documents, cases, and extant commentary from the period.
Citizens United involves the First Amendment. To be clear we shall put the text right here.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This is not a grant of rights to an individual. Rather it is a prohibition on governmental action. The argument I heard in eighth grade was that it did not apply to commercial speech. It was 1958 and we were in the midst of arguments in the press on “false advertising” and “advertising that was harmful.” Now, looking at Ben Franklin’s Pennsylvania Gazette you will notice advertising on Page 1. I wrote an essay in high school journalism on the annoyances of radio advertising, holding up the BBC (which I could get on shortwave) as an example. My teacher, deciding this was a “teachable moment” explained that BBC was a government enterprise, somewhat like Pravda and was this what we really wanted. It was a real fiery essay too, but I did rewrite it sans feu and it was not the same. She also showed where I could find the First Amendment and the report of the John Peter Zenger trial.
At any rate Citizens United is a case about political speech. It arose out of the McCain-Feingold Incumbent Protection Act which limits political speech. The public is best served when the media and advocates refrain from writing about incumbents in a window before an election. While the recognized media are “protected” by the First Amendment, McCain-Feingold took on corporations and unions. The theory was that they are not “persons” for the purpose of First Amendment protection.
The Court went off into drivel about the fact that corporations (unions are also corporations) are persons for the purpose of suing or being sued. This is what causes most of the rancor on the part of progressives. What the Court should have done is gone back to the most liberal defender of the First Amendment, Hugo Lafayette Black who argued that “Congress shall make no law,” means “Congress shall make no law.” This was a running argument between Black and his colleague William O. Douglas who advocated a “balancing test” and seldom met a regulation he did not like.
That theory, however, would have required the Court to throw out all of McCain-Feingold if not the entire federal election law itself. That is something the Court has not done for some time—in 1939 they upheld the power of the government to tax a sawed-off shotgun under the National Firearms Act but used a test of military utility to declare that the weapon did not fall under the Second Amendment. Every decision seems to leave further litigation as an option—expect McCain-Feingold to appear under a different name before a future court,