Dworkin, Ronald - A Decision That Threatens Democracy

06/18/2010

The New York Review, May 13 2010

This is a relatively scholarly article written by a well-known constitutional democracy philosopher regarding the Citizens United v Federal Election Commission case that was decided by the Supreme Court of the United States by a 5-4 decision in January 2010. The decision in the case generally reversed a longstanding tradition of restricting or barring non-media corporate entities (and other non-natural persons like unions) from most forms of campaigning during an election. Author gives some background for the case in part 1. Most importantly, the majority opinion considered this a free speech issue, using the First Amendment of the US Constitution as the basis for granting corporations and unions the right to directly advertise their opinions prior to an election.

In part 2, author uses his familiar argument about the language in the US Constitution: it tries to capture abstract concepts in political morality, and as such the principles behind the language-- the concepts of appropriate political morality-- are the ultimate appeal that judges should rely on. Thus there should be a theory, or number of different theories, that give reasons to underwrite the First Amendment. Author considers them:
1-The need for an informed electorate
2-The desire to 'protect the status, dignity, and moral development of individual citizens as equal partners in the political process'.
3-The desire to maintain honesty and transparency in government, e.g. not allowing the government to restrict speech

In each case, author considers the Citizens decision not only to fail to satisfy these desidirata, but to work in opposition to them.

In the case of 1, the need for an informed electorate, the idea here might be that we would hope that including corporations in the political process will uncover new ideas. Except that author declares that corporations can't think. Instead, it will be the ideas of the managers of the corporations, who can contribute to PACs on their own and therefore will just be adding to the volume of ideas, not new ones. It could also lead to a kind of double counting, or at least the impression of greater support for an idea than there is, due to the flow of money that corporations could level into the marketplace of ideas. (pg63) More importantly, at the root of campaign finance reform isn't the idea of "equality" in elections for their own sake. Instead, equality is encouraged for the sake of creating a marketplace of ideas where many can be heard. This is important to protect the "integrity of political debate"; author likens it to having a debate where time speaking is auctioned to the highest bidder. (pg64)

In the case of 2, the desire to respect the dignity and moral development of citizens-- the idea of protecting self-expression-- author claims there isn't a way the Citizens decision could support this since corporations aren't the kinds of things that have dignity or moral development.

In the case of 3, the desire to limit tyranny or corruption in government, author believes there aren't any positives to the Citizens decision, and it opens the door for more corruption, not less. For instance, it allows corporations whose interests are threatened by legislation to in turn threaten legislators by suggesting a flood of negative campaigning at the next election cycle. (pg64)

In section 3, author discusses the previous cases that had supposedly built a precedent for restricting corporate speech, Austin v Michigan Chamber of Commerce, and McConnell v Federal Election Commission, specifically taking apart the argument from the majority opinion's author, Anthony Kennedy. Kennedy had used two other cases to argue there was conflicting precedent, for instance in Buckley v Valeo and First National Bank of Boston v Bellotti.

In section 4, author suggests some legislative fixes that might be within the scope of the Citizens decision, for instance by restricting corporations that are foreign-owned (or foreign-owned subsidiaries), or recipients of TARP monies. [What about corporations that receive any government contracts?]