Did the FEC and DOJ miss the point?

[acroyear]

Citizens United argued on the basis of 1) a corporation has legal rights like a person, and 2) money for political purposes is free speech.

I have no idea what the opposition argued outside of precedent, precedent, precedent, and a touch of slippery-slope worst-case scenarios, 'cause that's all the editorialists and puntitocracy are talking about.

I'm wondering if they missed something that does significantly trump the first amendment: The Commerce Clause.

Almost all of the money involved in political advertising crosses state lines at significant points, whether to the corporation paying to make the ad, or the corporation paying to show it.  This is especially true as so many are incorporated in Delaware and other low-tax states, as well as the fact that there are only so many P.R. firms (and they too operate often out of different states from their offices for tax reasons).

So Congress putting limits on certain kinds of spending is certainly within their domain under the Commerce Clause, and any new law written needs to have that explicitly asserted as its basis in order to reverse this decision.

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now, why am i, a somewhat libertarian chap, worried about this?

My concern is that the lack of a spending limit now introduces a pricing war on the advertising firms and media outlets. The amount of air time for commercials and ad-space remains limited, but now the supply of dollars to fill it has no limit at all.

So bingo: bidding war. The networks and local affiliates rake it in, AND eventually one of the two "sides" to a public debate or election, and it WON'T be the side sponsored by the corporations, will be unable to actually meet the price point.

THAT is where this decision creates a corporate oligarchy. The money involved either protects incumbents who support the corporations or poses insurmountable challenges to those who write legislation against them - the other side becomes silenced by the lack of ability to pay for the time.

The Law is no longer just up for sale, it is up for auction to the highest bidder.

Comments

[acroyear70.livejournal.com]

actually, you've dropped right into the bigger problem - competing precedents. Commerce Clause DOES trump first-amendment freedoms in many other ways, enforced by a significant number of other precedents (including those that give the feds the rights over the states in issues of drug laws and assisted suicide laws), and the decision (as far as I've read, and any legal decision is a mess to read) looked at too much at the issue of what the money was going to not at all on how it got there.

Speech may be speech, but commerce is still commerce. The money as "speech" is going to bite the conservatives a lot more than they might like over time.

the other BIG problem with the whole damn thing is that most of the issues discussed in the decision (according to several reviewers) were not actually part of the findings of facts or in the original arguments presented in the case before them - this seems to be one of the worst cases of "judicial activism" I've ever seen.

This also was coming from the very same Roberts and Alito who insist in their writings (and Roberts reiterated in his hearings) that they are always in favor of strictly limited decisions, as shown by how much they refuse to address any real significant constitutional issue in any church-state establishment problem, constantly leaving the lower courts with a mess of vague and competing opinions and school boards with an utterly insane inability to act correctly, and thus more decisions to make it up there.

[mandrakan.livejournal.com]

That's incorrect. Congress can prevent me from buying drugs (commerce), but it cannot prevent me buying an advertisement (commerce) advocating the legalization of drugs (speech), because the First Amendment ("Congress shall make no law...") limits the Commerce Power.

[mandrakan.livejournal.com]

Ah, but perhaps now I see your point. Congress could arguably require a corporation to be federally chartered as a condition of operating in interstate commerce. It could then put whatever conditions it wanted on that charter.[1] (States could do this, too, but the race-to-the-bottom concern probably prevents it).

I think that would fail an equal-protection or privileges-and-immunities test under Citizens United (with the current Nine, anyway), but it's a thought.


[1] For instance, "A corporation chartered under this Act may sue and be sued in any State or Federal Court otherwise having jurisdiction, and may hold property in its own name, but is not a "person" within the meaning of any provision of the United States Constitution."