Abstract
This chapter addresses the problems underlying Citizens United v. FEC (2010), a case decided by the United States Supreme Court in 2010. Part I discusses political speech within a context defined by three factors: (1) electorates that are so large that speech must address them largely by using “mass media”; (2) a postfactual culture where analysis and debate often rely on distortions, misstatements, or fabrications of factual matters; and (3) a market society where effective political speech depends largely upon having the financial ability to use mass media. After discussing the legal fiction of corporate personhood, Part II argues first, that Citizens United has a reasoned basis and second, that critics allow their concern about the role of wealth in politics to divert them from addressing both the basis of the decision and other avenues of reform. Part III discusses measures to limit the role of money in politics and the problem that, in a market society, speech is always, to some extent, for sale.
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Notes
- 1.
Lippmann also argues that ordinary people are so limited in their knowledge of political matters that their only choice is “[t]o support the Ins when things are going well; to support the Outs when they seem to be going badly” and that “this, in spite of all that has been said about tweedledum and tweedledee, is the essence of popular government” (Lippmann 1925, 126). Richard Posner adopts a similar view (Posner 2003, 150–153, 168–169). However, he argues that, despite these limits, our democracy functions relatively well (Posner 2003, 158–212). For example, he argues: “We should not take the Tweedledum-Tweedledee character of major-party competition as a sign that competition is not working. If the parties were highly dissimilar, one of them would probably be the permanent minority party” (Posner 2003, 190).
- 2.
News has always been a profit-oriented business. For example, the Spanish American War was the first “media war” because of the role of newspapers in using misleading accounts in order to boost circulation (PBS 2007). Similarly, the television networks were so “enthusiastic about covering” the first Iraq war that “they wanted it to take place because they knew how … large the audience would be.” (McGoldrick 2004, 41).
- 3.
- 4.
Others have noted the use of “‘symbolic politics,’” “empirically ungrounded political lore,” and “iconic images” to “mold public agendas” (Haltom and McCann 2004, 270–271.)
- 5.
The article contains comments by Karl Rove that $75 million in advertising by the super PAC American Crossroads attacking Obama was “forcing Obama to respond … and thus draining the President’s funds” and by Steve Law, CEO of Crossroads, conceding that “Crossroads has not yet fundamentally reshaped any major Senate race,” but noting that “Crossroads has forced Democrats into new spending just to hold their ground.” (Scherer 2012).
- 6.
Examples of nonadvertising campaign expenses include overhead costs and grassroots organizing, which can also be very expensive (Scherer 2012, 45).
- 7.
This figure includes expenditures by the candidates, the two political parties, and outside groups (Scherer 2012, 41).
- 8.
This figure includes expenditures by the candidates, the two political parties, and outside groups. (Scherer 2012, 41).
- 9.
Others have made similar comments. Justice Stevens, in his dissent in Citizens United (2012, 972), noted that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” Elizabeth Wolgast argued that “it is implausible to treat a corporation as a member of the human community, a member with a personality (but not a face), intentions (but no feelings), relationships (but no family or friends), responsibility (but no conscience), and susceptibility to punishment (but no capacity for pain)” (Wolgast 1992, 86).
- 10.
The first case to recognize corporate constitutional rights was Santa Clara Cnty. v. S. Pac. R.R. (1886). In Santa Clara, the reported opinion states that, prior to oral argument, Chief Justice Waite said:
The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.
Though this brief statement with no discussion or reasons has never been overruled, it has been widely criticized and is followed today (Hubbard 2011, 434–435).
- 11.
Section 100.29(a)(2)–(b)(3)(ii) of the Code of Federal Regulations defines “electioneering communication” as “any broadcast, cable, or satellite communication” that (1) “refers to a clearly identified candidate for Federal office” and (2) is made within 30 days of a primary election, and (3) that is “publicly distributed,” which in “the case of a candidate for nomination for President… means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election… is being held within 30 days.”
- 12.
For example, defamatory statements can be “restricted” by the threat of a defamation suit against the speaker if the plaintiff can satisfy the requirements of New York Times Co. v. Sullivan (1964).
- 13.
Dworkin made a similar argument. (Dworkin 2010a, February).
- 14.
- 15.
Dworkin made a similar argument. (Dworkin 2010b, May).
- 16.
Dworkin also fails to address Scalia’s argument. (Dworkin 2010a, February, 2010b, May) The dissent argues that corporations can “distort” the political process (Citizens United 2012, 971–977). However, with the exception of the issue of speaker identity (which could be addressed by the disclosure requirements upheld by the court), the dissent fails to distinguish this from the effect of individual wealth and, except for a reference to the First Amendment’s Free Press Clause (Citizens United 2012, 951–952) generally avoids the problems of electioneering by political parties and media corporations.
- 17.
Buckley v. Valeo (1976) recognized these individual rights.
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Hubbard, F.P. (2014). Mass Democracy in a Postfactual Market Society: Citizens United and the Role of Corporate Political Speech. In: Cudd, A., Scholz, S. (eds) Philosophical Perspectives on Democracy in the 21st Century. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-319-02312-0_11
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