Score one against corporations being people.

Taking a break from our platinum coin coverage, let's see what's the latest in the fight over corporate personhood. The San Francisco Chronicle has a story about a case that decided whether corporations are people for purposes of counting the number of occupants in a car. 

Citzens United and freedom from Obamacare

One thing that some lawyers like to do is to wreck the weekend of their adversary. For example, a lot of lawyers like to serve motion papers late in the day on a Friday. This is particularly true of expedited motions, like one for a temporary restraining order, that do not follow longer briefing schedules. Apparently the desire to drop bombs on a Friday does not go away when one becomes a judge. 

Another example of corporate speech (UPDATED)

UPDATE:

The DC Circuit has affirmed (in R.J. Reynolds v. FDA, No. 11-5332) the decision discussed below, which ruled unconstitutional the FDA's attempt to force tobacco companies to add large, graphic images to their cigarette packaging. Mr. Gillette discussed another free speech case involving tobacco companies here.

ORIGINAL POST (3/6/2012):

We have talked a lot about whether corporations have a First Amendment right to spend unlimited amounts of money engaging in political speech.

But last week, a district court judge in Washington D.C. tackled another aspect of a corporation's First Amendment rights: the right not to speak.

The corporations in question are about the least sympathetic corporations you can imagine: tobacco companies. They filed suit objecting to new FDA rules promulgated under the Family Smoking Prevention and Tobacco Control Act, which President Obama signed in 2009. One of the provisions of the Act is a requirement that the FDA "issue regulations that require color graphics depicting the negative health consequences of smoking" take up the top 50% of both the front and back of cigarette packages. Eventually, the FDA published nine such images, including the ones that appear inline here.

The tobacco companies objected to these images as compelled speech, in violation of the First Amendment. The law is clear that freedom of speech includes the right to refrain from speaking at all and that "[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say." Pac. Gas & Elec. Co. v.  Pub.  Utils. Comm'n of Cal., 475 U.S. 1, 16 (1986) (plurality opinion).  (The astute will notice that this decision long predates the Citizens United decision that supposedly established that corporations are people with First Amendment rights.)

Maybe summary reversal of the Montana Supreme Court was for our benefit.

Seventh Circuit Court of Appeals Judge Richard Posner has a different perspective on the Supreme Court's summary reversal of the Montana Supreme Court's campaign finance decision.  His thoughts are at the end of this post about Miller v. Alabama.

Judge Posner writes:

I would like to comment very briefly on the Montana campaign contributions decision. I think the court was right to do what it did. I don't say this because I agree with the Citizens United decision. I don't. But a presidential campaign is not the right time to revisit the issue. The prospect that the court might overrule the decision, or more likely modify it, would create enormous uncertainty at a time when the voters' and the politicians' circuits are already overloaded

I have not thought of this before.  Obviously, Judge Posner does not know whether the 5 justices who voted to summarily reverse the Montana Supreme Court were thinking about this issue.    But it is an interesting thought.  Presumably in light of the summary reversal no state is going to try to uphold a similar spending restriction and thus the presidential candidates and the PACs that support them all understand what type of spending is allowed.  If the Supreme Court had simply set the case for argument next term (which does not begin until October so no decision would be likely until after the election), it would have been unclear whether a state could limit the holding of Citizens United. 

On the other hand, given Mr. Torvik's point that the five justices who support Citizens United think that as a matter of law unlimited independent corporate expenditures on political messages do not create the appearance of corruption (a point on which they are surely wrong), it feels like Judge Posner is being too charitable to the Supreme Court.  Remember that for the Supreme Court to revisit the issue, someone has to appeal.  A summary reversal sends the message that such an appeal will be fruitless.  Perhaps some appellate lawyers will see this the same way that Judge Posner does and appeal to the Supreme Court the next time a state supreme court strikes down one of its campaign finance laws.  But that seems like a bit of a stretch.

Public opinion, expert opinion, and judicial opinions

In an excellent post, Mr. Gillette raises the topic of whether the Supreme Court should be swayed by public opinion. He makes a convincing case that it shouldn't be.

But is it?

Should public opinion matter to the Supreme Court

Slate's Dahlia Lithwick says the lesson of the Supreme Court's summary reversal of the Montana Supreme Court campaign finance decision is "that the sense of lingering public outrage over Citizens United—deserved or not—influenced the court not one little bit on this issue."  The articles headline (which I assume Ms. Lithwick did not write) is even more blunt:  "The court’s conservatives don’t care how much you hate Citizens United."

Setting aside the rather obvious point that nothing suggests that the justices who dissented in Citizens United care about how much people might dislike Citizens United, lesson Ms. Lithwick finds begs the question of should the Supreme Court care about the public outrage over its decisions. 

No Conversing Necessary

Today, as expected, the U.S. Supreme Court bench-slapped the Montana Supreme Court by summarily reversing— without briefing or argument—the lower court's decision to uphold Montana's restrictions on independent political expenditures by corporations. The Court, in a per curiam opinion, found that there was "no serious doubt" that the holding of Citizens United applied to the case, and the Montana law was therefore clearly unconsitutional.  

Devoted reader(s) of the blog may recall our five-part Gillette-Torvik Conversation™ on this topic. We obviously spent a lot more time conversing about this case than the Supreme Court did.

UPDATE:

Prof. Rick Hasen has this interesting observation:

Citizens United and the Wisconsin Recall

What effect did the Citizens United ruling have on the Wisconsin recall election?

Many Democrats blame Scott Walker's victory on Citizens United, pointing out that anti-recall forces vastly outspent the pro-recall forces. This flood of out-of-state money was made possible, they argue, by the Citizens United decision, which struck down certain limits on corporate electioneering. In short, Citizens United made possible the rise of the pernicious "super PACs" that bought the election for Scott Walker. As a result, Scott Walker was able raise nearly eight times as much money as Tom Barrett ($30.5 million to $3.9 million.)

Republicans disagree. For one thing, they argue, things would have been even worse for the recall efforts prior to Citizens United, because Citizens United also makes possible unlimited electioneering expenditures by labor unions, which made the most of this new freedom and spent heavily in support of the Wisconsin recall effort. Indeed, when you look at the independent expenditures, it turns out that pro-Barrett forces spent $1.6 million more on the recall election than pro-Walker forces did.  When these independent expenditures are included, Walker's money advantage shrinks considerably.

Moreover, Republicans argue, the vast majority of the independent expenditures made on Scott Walker's behalf were made by individuals—not corporations or super PACs—and individuals have been free to spend as much as they like on independent electioneering activities since the Supreme Court decided Buckley v. Valeo in 1976. In other words, without Citizens United, the wealthy individuals would have been free to spend their millions in support of Walker, but the labor unions would have been powerless to respond in kind.

Also, the disparity in the amount Scott Walker directly raised ($30.5 million) versus the amount Tom Barrett raised ($3.9 million) is largely explained by a quirk of Wisconsin law. Walker, as the incumbent, was allowed to receive unlimited direct contributions from individuals, while Barrett was hamstrung by the general $10,000 per-person cap. So Walker had a huge fundraising advantage under Wisconsin law, and this advantage had nothing to do with Citizens United.

One easy answer about the effect of Citizens United on the Wisconsin recall election would be to say it had no effect, because that case dealt with a federal election law that concerned only federal elections. But that would be wrong: state election laws have been struck down in light of Citizens United. Pertinently, the Seventh Circuit relied on Citizen United to strike down a Wisconsin law that previously imposed a $10,000 yearly cap on the amount that individuals could make to "independent expenditure committees" of PACs and the like. But since individuals were permitted to make unlimited contributions directly to Walker's campaign, it's hard to see how a cap on indirect contributions would have changed anything.

Ultimately, it seems hard to maintain that Citizens United really played much of a role in the Wisconsin recall election. But I'm interested in your thoughts, Mr. Gillette (if you have any).

One final point. Tom Barrett raised only $3.9 million in direct contributions. But he ended up spending only $2.9 million. If money is so important in elections, failing to spend 25% of what you raised seems like a pretty stupid thing to do. (All I can think of is that perhaps he was saving money for a recount, or something?)

Texas Executes Corporations All The Time

A popular trope among a certain set is, "I'll believe corporations are people when Texas executes one."

This is a clever and amusing way to point out that human beings are alive and corporations are not. It also insinuates that conservatives in Texas like to kill people even while they worship at the altar of corporate personhood.

But, in fact, Texas does execute corporations all the time. In this context, however, the death penalty is called "involuntary dissolution." Indeed, among the many bases for a court-ordered involuntary dissolution is when a Texas corporation is convicted of a felony. In other words, a corporation faces the death penalty whenever it (or a "high managerial agent" acting on its behalf) is convicted of a felony.

When a corporation is involuntarily dissolved the capacity it formerly had to prosecute a cause of action is vested in its shareholders. In other words, the corporation vanishes and nothing is left but the human beings who owned it. Human beings that, presumably, Texas can go ahead and execute.

More on Montana and Citizens United

Earlier this year, Mr. Torvik and I had a Conversation™ about how the Montana Supreme Court stuck its thumb in the eye of the United States Supreme Court regarding the Citizens United decision.  It turns out that the Western Tradition Partnership, Inc., v. Attorney General case was just the the beginning of Montana's attack on the decision.

More on the First Amendment rights of tobacco companies.

A couple weeks ago, Mr. Torvik posted about a a district court judge in Washington D.C. who ruled that tobacco companies could not be forced to devote the top 50% of both the front and back of cigarette packages to "graphics depicting the negative consequences of smoking."

It appears that while the litigation that Mr. Torvik wrote about was underway, an appeal in the United States Court of Appeals on the same topic was also underway.  While the Sixth Circuit didn't consider the 9 images that were the focus of the D.C., lawsuit, it did address the top 50% issue and found that the government could force tobacco companies to devote the top 50% to graphics depicting the negative consequences of smoking.  The opinion is here.

To Mr. Torvik's point in his post, it does not appear from the opinion that anyone argued that tobacco companies can be compelled to print the graphics because the companies are not entitled to First Amendment protection.

One weird thing about the opinion is that  the author of most of the majority opinion, Judge Eric Clay, also wrote a dissent on  the constitutionality of the color graphic and non-graphic warning label requirement.  One doesn't see that every day.

Dancing with the devil

President Obama recently decided to embrace so-called "super PACs" for his reelection campaign. This despite his prior position that such groups should be outlawed, on the argument that—as Justice Ginsburg recently implied—they "give rise to corruption or the appearance of corruption."

Given this, I think at least one of three things must be true:

1) President Obama is corrupt;
2) President Obama is apparently corrupt; or
3) President Obama doesn't really believe that this kind of money gives rise to corruption or the appearance of corruption.

Which do you think it is, Mr. Gillette?

My own guess is number three. But at least one prominent campaign-finance reformer has lambasted Obama for "dancing with the devil" by employing this "corrupting tactic": Russ Feingold.

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART FIVE

[Here are parts one, two, three, and four.]

TORVIK:  The concept of corporate personhood does not affront my human dignity. The principle that corporations are entitled to certain constitutional rights is an old and well-established one. So if it were injurious to human dignity, the damage would presumably already be done. But perhaps I just don't know what it is like to feel fully dignified. Though I am frequently indignant.

When you think about it, it's pretty clear that corporations and other entities must have certain rights but not others. For example, no one would think it proper under the Fourth Amendment for the government to raid the ACLU's (or even IBM's) headquarters without a warrant. See Hale v. Henkel, 201 U.S. 43, 76 (1906). But few would bat an eye at the proposition that corporations lack the privilege against self-incrimination granted by the Fifth Amendment. Id. Why this different instinct? One idea: some rights are personal (such as the privilege against self-incrimination) and other rights are more structural (like the right to be free from unreasonable searches and seizures). The privilege against self-incrimination seems to flow from an idea that there's something wicked about forcing an actual human being to testify against himself. The right to be free from unreasonable searches, on the other hand, has more to do with proper government structure—i.e., ensuring that the government is not tyrannical. (Though, to be sure, there's an element of a personal privacy right in the Fourth Amendment also.)

So maybe one's reaction to Citizens United comes down to whether one thinks the right to engage in political speech (and to spend money to amplify that speech) is more like a personal right or a structural right. This strikes me as a question about which reasonable minds can disagree. If your theory of the First Amendment is that it exists to foster personal self-fulfillment and autonomy, you probably don't think protecting corporate speech makes much sense, and you might even be offended by it. But if your theory is that the First Amendment exists to encourage a free-wheeling exchange in the marketplace of ideas, then you probably just say "the more the merrier," whomever (or whatever) the speaker is. Since I'm provisionally in the latter camp, I don't think the dignity of the species is at stake.

GILLETTE:  It is a mildly amusing thought experiment to scroll through the Amendments to the Constitution and decide which ones apply to “people people” and which ones apply to “corporate people.”  Corporations can’t vote, bear arms, invoke the right to not testify, or run for office (to stretch the 22nd Amendment).  On the other hand, corporations do get to take advantage of the rights to free speech, be free of unreasonable searches and seizures, and free from being forced to quarter soldiers in peacetime.  At least I assume that corporations are protected by the Third Amendment; no case actually discusses the issue.  In fact, it appears that there is only one case that has ever been decided solely on Third Amendment grounds, Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982).

The fact that the First Amendment applies discusses “the press” and the “establishment of religion” certainly suggests that the Framers thought that the amendment applied to organizations.  After all, virtually every religion has some sort of organization or hierarchical structure.  The same is true for “the press.”  It would be strange to think that freedom of the press only means freedom of the human printer not the freedom of the company owning the newspaper.  One might also point out that the First Amendment’s prohibition is on the Government’s ability to prohibit any speech (“Congress shall pass no law”) not just speech by “people people.”  Moreover the amendment is not  a grant of a right to the people (although granting a right to the people would be weird given that the Constitution is written by “We the People.”). 

To me it isn’t necessarily about self-fulfillment or the marketplace of ideas.  It’s more along the lines of the Eugene Volokh hypothetical you brought to my attention.  If we say that corporations don’t have first amendment rights, then that rule is going to apply to corporations whose speech I support as well as those whose speech I don’t.  I don’t regard that as a good trade. 

Speaking of corporate speech, John Stewart and Stephen Colbert do a nice job of illustrating the bogus nature of laws preventing candidates from coordinating advertisement campaigns with the Super-Pacs that support them. 

TORVIK:  Let me make clear that the Gillette-Torvik Blog believes that it has the right to be free from being forced to quarter soldiers in peacetime. 

I think your instinct that a ban on corporate speech would stifle lots of speech that you like masks a deeper principle. I don't think your judgment is that you approve of allowing corporate speech just because, on the whole, you think that it will allow enough speech that you like. I think the underlying judgment is that there is something wrong with stifling the corporate speech that you like, and you have to admit that the same principle must apply to the corporate speech that you don't like.

Anyhow, I think we've come to some consensus. Corporations do have some rights, including some free speech rights. But like any rights they are susceptible to reasonable regulation. I think there's probably a lot of ways to nibble around the edges of corporate speech rights to satisfy the pragmatic concerns of Citizens United's opponents. But—to bring things back to the Montana case that got us off on this—my great disappointment with Western Tradition is that it makes such a poor effort at making any persuasive distinctions. Those will have to await a future case. So we'll have to wait probably about five minutes.

Finally, I want to reiterate my belief that most of these attempts to limit the role of money in politics are futile. I support disclosure laws and those kinds of things, but I think in the end we'd probably be better off with fewer restrictions on political spending rather than more.

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART FOUR

[Here are parts one, two, and three.]

GILLETTE:  I’ll concede the point that the story of Senator Clark may be irrelevant for purposes of whether the statute is constitutional.  However, I think the portion of the opinion that dealt with the Anaconda corporation is relevant.  The statute, after all, is attempting to control the influence of corporations.  The Anaconda corporation controlled the state during a significant portion of Montana’s history and the statute is, evidently a response to that control. 

With respect to judicial integrity, presumably the state could protect that integrity by not having its judges elected.  They could, like federal judges, be appointed for life or some other term.  I agree with you that that particular part of the opinion is not particularly well crafted.

While I am not afraid of speech, your lack-of-alternatives argument regarding the marketplace of ideas doesn’t convince me that attempts to regulate the flow of money in political campaigns are misguided. One way of limiting the amount of speech in the marketplace of ideas is the law being upheld by the decision.  The Montana law at issue had been on the books for nearly a century.  Is the democratic process in Montana less robust as a result of the law?  There doesn’t seem to be any evidence that it is less robust.  As I mentioned earlier, Western Tradition is an organization that, in part, is dedicated to overturning laws like the one in Montana.  They are supremely motivated to find a compelling plaintiff to show how democracy is harmed in Montana.  They were unable to do so.  Instead they got two co-plaintiffs who were unable to articulate any impact on them by the law.

Your response to my first question is more difficult.  If money isn’t speech than laws regulating its use aren’t subject to First Amendment scrutiny.  While I can’t imagine that a federal law allowing corporations to only donate money to one party would ever get out of the Senate, it does strike me as conceivable that a state that is dominated by a single party could pass such a law.  However, I suppose that in those states there are fewer donations to state political parties and candidates because there isn’t much by way of competitive elections.   Thus, there isn’t any incentive to pass such a law.

Your response to the second question also touches on the part of the dissent that has caught some attention.  Justice Nelson writes that while corporate personhood is well established law, “I find the entire concept offensive.”  ¶ 132.  According to Justice Nelson, since corporations are creatures of law, any legal protections corporations enjoy should be conferred by the legislature not by the Constitution.  Just Nelson writes “Corporations are not persons.  Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people-human beings-to share fundamental, natural rights with soulless creations of government.  Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound by the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins.  Indeed, it is truly ironic that the death penalty and hell are reserved only for natural persons.”

I have not previously considered my dignity affronted by corporate personhood to be an affront to the dignity of the species.  That said, I take Justice Nelson’s point to be that humans have fundamental rights because of the unique qualities that make us human.  Particularly, I think the justice is referring to free will.  Corporations, of course, don’t have a will.  Instead they have people who are tasked to act in furtherance of the corporation’s purpose.  With respect to for-profit corporations, the corporation exists to make money.  Political action corporations exists to propagandize for a cause.  Corporations, unlike humans, do not have to navigate the junction of emotional, physical, social, and philosophical imperatives that drive humans.   Lacking these motivations, corporations are different enough from human beings that, according to Justice Nelson, they shouldn’t be afforded the same rights.

You say that if corporations aren’t people then their speech can be regulated to the point of being forbidden (or perhaps also compelled).  Moreover, if corporations aren’t people than presumably corporations have no rights under the Fourth Amendment.  Given that corporations have no rights under the Fifth Amendment (see U.S. v. Kordel, 397 U.S. 1 (1970)), one might argue that whatever Fourth Amendment rights they have are illusory.  I didn’t research the point, but I hope that corporations don’t have any Second Amendment rights.

Limiting or eliminating corporate speech is only a problem if you regard corporate speech as somehow important.  There are, I suppose, arguments pro and con that point.  One thing that I think people who feel like Justice Nelson overlook is that whatever rule gets created regarding corporate speech will apply equally to entities one might think of as doing good as to entities one thinks of as acting more like the Anaconda Corporation.

How’s your personal/species dignity doing since Citizens United?

TORVIK RESPONDS ... TOMORROW!

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART THREE

[Here are parts one and two.]

TORVIK:  Before I answer your specific questions, I want to discuss the Montana history lesson you mention. I too was amazed by the account of gilded-age corruption in Montana.  But while I was reading it, I kept asking myself: why does this matter? None of it had anything to do, I'd submit, with electioneering by corporations. Instead, it appears that some rich guy had everybody in the state of Montana on the take. This isn't some indirect corruption caused by the implicit purchase of votes through campaign contributions.  It's straight up corruption—bribery, direct payments, etc. (In Chicago, where I live, this is called Tuesday.)  

How does any of this history support the statute? Is the idea that because some people who got rich running corporations engaged in corrupt practices that all corporation must be excluded from making direct campaign contributions? Or what? I just don't get it.

The opinion also goes on at length about the governmental interest in protecting the appearance of an impartial judiciary. Again: so what? Most states have specific rules about judicial elections that address these concerns head on. The legal term for that is "narrow tailoring." The court attempts to address this concept in ¶ 47, but it is a D-minus effort at best. Instead of actually talking about whether the statute is narrowly tailored to address the identified governmental interests, it cursorily states that the effects of the statute on the plaintiff's speech are merely minimal. But that really isn't the point. The issue is whether the legislature could have accomplished the same goals by using less speech-restricting methods.  

The answer is a clear yes. If corruption in the form of bribery is really the interest—as you suggest—that interest can be addressed by laws that outlaw bribery and such corrupt practices. But Montana surely already has such laws. This is why the issue normally raised in these cases is not actual corruption, but the appearance of corruption. It's hard to see how limiting a corporations ability to spend money on politics prevents actual corruption. On the contrary, it would seem to prevent it by taking the money that would otherwise go to fund bribes and using it buy slimy ads. Or something.

And if the sanctity of judicial elections is the sacred cow, come up with special rules for judicial elections.

Now, on to your questions.

1)  Should spending money on politics be considered a form of speech? Yes. If it weren't, then content-based restrictions on campaign contributions and expenditures would be permitted under the First Amendment. For example, a law that said, "You may donate to Republicans, but not Democrats" would presumably be constitutional unless the First Amendment protects campaign donations as a form of speech. Or consider a law that allowed corporations to donate to Democrats but not Republicans. Unless corporations have free speech rights and campaign donations are a form of speech, such a law would presumably be constitutional.

2)  Is more speech always better? Perhaps not, but what is the alternative? Who decides when to restrict, and how do we determine whether such restrictions are legitimate? A free-for-all marketplace of ideas strikes me as superior to any conceivable alternative. Moreover, we just can't be afraid of speech. Because either people can handle free speech or they can't. And if they can't—if the polis is so easily duped, overwhelmed, or discouraged by "bad" speech"—then the republican form of government is doomed anyhow. So if we are going down, I'd prefer we go down fighting and free rather than surrendering to the idea that human beings are fundamentally incapable of self-government.

GILLETTE RESPONDS ... TOMORROW!

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART TWO

[Here is part one of the Conversation™.]

GILLETTE: The first thing that struck me about the case, and perhaps this goes to your subjective nature of reality posts, is how ludicrous at least two, if not all three of the plaintiffs’ claims are. One plaintiff, Champion Painting, Inc., is a sole proprietorship owned by Kenneth Champion, who is apparently the only employee of the company. Opinion ¶ 5. Mr. Champion is personally active in county and state politics, supporting and opposing candidates through blogs, letters to the editor, and speeches. Id. Mr. Champion believes (emphasis mine) that the Montana law prohibits him from speaking as the corporate spokesman of Champion Painting and prohibits him from using corporate funds to independently support or oppose candidates. Id. He also believes (emphasis mine) that an endorsement by Champion Painting would help his message. He also believes that there would be tax benefits to his corporation spending the money instead of him. ¶ 18. Apparently, he did not provide the court with anything by which it could gauge whether Mr. Champion’s beliefs were supported by fact. Please pause to consider the fact scenario by which a person might find the endorsement of the owner of Champion Painting unpersuasive but find the endorsement of the company Champion Painting persuasive.

Similarly, another plaintiff, the Montana Shooting Sports Foundation, has, for over 10 years, operated a political action committee in Montana and publicized the foundation’s grading and endorsements of candidates in state and national elections. ¶ 6. Gary Marbut, the foundation’s founder says that the foundation has “some weight with the Montana public by virtue of [the foundation’s] long history of activism in Montana.” Id. However, Mr. Marbut believes that Montana law prohibits him from using the foundations member dues (but not donations) to support or oppose candidates. Id. As the Court notes, Mr. Marbut is simply wrong in his belief. ¶ 17.

Perhaps unsurprising given the above, neither Mr. Marbut nor Mr. Champion could articulate a way that the Montana law hindered their political speech. Id.

Then we come to the third plaintiff, Western Tradition Partnership Inc. It is a Colorado corporation but is not a business corporation. ¶¶ 7, 19. Its purpose, according to the Montana Attorney General, is to solicit and anonymously spend the funds of other corporations, individuals, and entities, to influence the outcome of Montana elections. ¶ 19. As the opinion notes, Western Tradition is refreshingly upfront that its expenditures will, in fact, influence Montana elections. It told potential donors “The only thing we plan on reporting is our success to contributors like you who can see the benefits of a program like this. You can just sit back on election night and see what a difference you’ve made.” Id. Western Tradition has not been complying with Montana Election laws and has brought at least three lawsuits in Montana state and federal courts to overturn various Montana election laws it doesn’t like. One of the dissenters said Western Tradition engaged in “blatant hypocrisy.” ¶ 69 n.3. The dissent, of course, wanted to rule in favor of Western Tradition.

Anyway, you didn’t ask whether I thought the plaintiffs were nincompoops. You asked whether any of the opinion’s distinctions were persuasive to me. The answer is yes. In Citizens United, the government did not claim that corporate expenditures had actually corrupted to political process. Thus, Justice Kennedy wrote that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Citizens United, 130 S.Ct. at 909. Looking at the history of the State of Montana, the Montana Supreme Court said “[e]xamples of well-financed corruption abound.” ¶ 23.

The opinion goes on at length with these examples, which I was unaware of and found amazing. I won’t go too much into them but there were examples of corporations paying judges for decisions, bribes paid to the Montana legislature to seat W.A. Clark as United States senator that were so notorious, the Senate unseated him. At one point one a subsidiary of Standard Oil controlled 90% of the newspapers and a majority of the legislature. Things were so bad that even Senator Clark admitted that many people were indifferent to voting because of the large sums of money expended to control politicians. Because of Montana’s small population, current Montana politicians submitted affidavits describing how corporate spending significantly affects the outcome of elections today. At a minimum, it seems to me that the Montana Attorney General was trying harder to defend the statute then the government did in Citizens United.

One thing that is interesting about decision is that while the majority opinion doesn’t attack the concept of corporate personhood, the second dissent, by Justice James C. Nelson, attacks the concept relentlessly and remorselessly. Justice Nelson, who dissents because he agrees with Professor Volokh and Ms. Lithwick that Citizens United controls the outcome of the case, writes:

While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters the notion that corporations are disadvantage in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and its state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders who favored the preeminence of individual interests over those of big business.

Second, I disagree with the premise that unlimited corporate political speech is essential to ‘enlightened self-government’ and aids in the electorate in making ‘informed choices.’ Citizens United¸130 S.Ct. at 898, 907. I agree that “[r]hetoric ought not to obscure reality.’ Citizens United, 130 S.Ct. at 907. But I cannot agree that Citizens United majority’s views reflect “reality.” For one thing, voters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech. Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse or disenchant voters.

There’s more to the dissent that we should, and perhaps will, discuss. But let’s start with these two points. I think that Justice Nelson is correct that current First Amendment jurisprudence equates speech and money. But should those things be equal? Second, do you think that “more speech” or at least the speech we currently get in elections, is particularly useful in terms of ferreting out the truth? As lawyers’ we believe that truth emerges in our adversarial system. But in a trial, each side gets an equal opportunity to present its case to the judge and jury. That doesn’t necessarily happen in elections because one side may spend vastly more than the other.

TORVIK: Hmm. That's a lot to chew on. I will have to sleep on this and get back to you tomorrow.

TO BE CONTINUED...

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART ONE

GILLETTE:  The Montana Supreme Court made the news recently for its decision in Western Tradition Partnership, Inc., v. Attorney General. The decision upholds Montana’s ban on corporate expenditures in favor of or against a political candidate. Eugune Volokh says that this result is directly contrary to Citizens United, the United States Supreme Court opinion that overturned a provision of the McCain-Feingold law that prevented corporations from spending money on independent electioneering within 60 days of a general election (or 30 days of a primary), and will be reversed by the United States Supreme Court. Indeed, the two dissenters in the Montana Supreme Court opinion dissent for that very reason. Dalia Lithwick at Slate also thinks the decision is a thumb in the eye to Citizens United, but in typical Slate faux-contrarian fashion she posits that the Montana Supreme Court ruled the way it did because the justices on the court are elected and they know that Citizens United is not popular with a lot of people.

This lack of popularity stems from the fact that the shorthand description of Citizens United is that corporations are people with the same First Amendment rights that, to borrow a phrase from Stephen Colbert, “people people” have.

What do you think Mr. Torvik?  Is Western Tradition Partnerhship doomed for reversal?  Or is the majority’s decision defensible?

TORVIK:  If Eugene Volokh and Dahlia Lithwick agree that Western Tradition is directly contrary to Citizens United, who am I to disagree?

I would love to defend the decision.  It's often true that seemingly irreconcilable decisions can be squared away by emphasizing minute but legally significant distinctions.  That's lawyering, after all.

But the Montana court doesn't do a very good job of pointing out any meaningful differences.  Frankly, some of its "analysis" is closer to schoolyard taunts.  For example, it notes that the statute was passed 99 years ago and frames the question to be decided as "when  in  the last  99  years  did Montana lose  the  power  or interest  sufficient  to  support  the  statute, if it ever did?"  Obviously, once you see this formulation of the question, you can guess what the answer is going to be. (Flashback to law school: "Was it 98 years ago? 97 years ago? 90 years ago? ...")  And in an analogy on its way to the preordained answer, the court says, "Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines?  We think not."  Careful lawyers might be able to make some distinctions here, between the murder hypo and the campaign finance situation.

I'll give the court credit for one thing—it did resist the urge to make a Hitler analogy.

What do you think?  Did any of the Court's distinctions sing to you?

TO BE CONTINUED ...

Targeted campaign ads

Very interesting post, Mr. Gillette.  It will certainly be interesting to see how this plays out -- both in the specific case of Target's contribution and the broader context of this fall's elections.

But it's worth thinking about what would have happened if Section 203 of the McCain-Feingold bill were still intact.  That provision, which is what the Supreme Court struck down in Citizens United, did not say that "corporations aren't people"; it did not say that "corporations have no first amendment rights"; it did not even say that "corporations cannot direct money towards electioneering."  Instead, it set out a very specific way for corporations to spend money on independent electioneering within 60 days of a general election (or 30 days of a primary):  they had to do it through a political action committee.  In other words, they had to set up a PAC and give money to that PAC, which could then use it on independent political expenditures.

Testing a theory.

The Citizens United opinion came out before we started this blog. At the time, I recall us discussing whether the decision would impact the political contributions given by publicly traded corporations and/or corporations that did business with the public at large. One theory we had was that those types of corporations would not engage in large-scale political contributions because they risked alienating shareholders or customers who belonged to the opposite political party. This thought is encapsulated in the, probably apocryphal, story that Michael Jordan replied "Republicans buy sneakers, too" when asked why he was not supporting former North Carolina Senator Jesse Helm's opponent in an election.

This theory has recently been put to the test in Minnesota. Target has given $150,000 to a political group that supports Tom Emmer, the GOP candidate for governor in Minnesota. Among his positions, Emmer is anti-gay marriage.

Target's donation has been noticed and upset some folks. In response, Target's CEO is trying to do some damage control by emphasizing Target's "commitment to diversity". I predict a similarly sized donation to a pro-GLBT group as soon as the election is over. As an aside, Jon Tevlin reminds his readers that members of Mark Dayton's family founded Target. Dayton, of course, is also running for governor.