Michael Kinsley’s Defense of Citizens United

May 5, 2016
posted by Bob Bauer

Michael Kinsley intends a face slap to” liberals” by denying, as only he can (succinctly and entertainingly), that Citizens United was wrong.  He argues that the Court ruled correctly–“it was a good decision”–and vindicated First Amendment values.  He succeeds in drawing a little blood.  He notes that the same critics who say that money is not speech disagree with Citizens United precisely because they believe that money is speech, and they don’t care for the volume and potential effectiveness of the speech that the decision allows for.  Fair point.  He raises the usual alarms about attempting to amend the Constitution to overturn the decision, and he concludes that the only solution to any undue corporate influence is politics: “if enough people are enraged enough by the imbalance of political power caused by money, they will vote against big money, which will turn it into a negative.”

There is more something more to the dissatisfaction with Citizens United that Kinsley does not come to terms with.  It is in part an objection to the Court’s performance in the particular case.  As others not unsympathetic to the outcome but unimpressed with the work product have noted, the Court’s craftsmanship left much to be desired.  It could have found for the aggrieved organization, Citizens United, on considerably narrower grounds.  Instead it chose to transform a case about in-theater and on-demand documentary distribution into a test of corporate free speech rights across the board. This level of ambition called for a high degree of execution, which was dramatically lacking in an opinion that, as Professor Michael McConnell has written, was “overly long and unfocused.”

Beyond these faults is one even more basic, which is the Court’s chronic temptation to accelerate the movement of major issues from public debate and engagement to decisive judicial resolution.  The question of the corporation’s role in politics is complex and both politically and socially controversial.  There is no generally accepted answer, except that most concede that there are constitutional limits within which any such answer would have to be devised.  It would have been no sin, and the better part of wisdom, for the Court in Citizens United to have addressed as narrowly as possible the immediate issue (a nonprofit’s distribution and promotion of a political documentary), and then let the argument continue. Still better, it might have addressed the issue with the very intention of leaving space for that argument to continue.

A majority of the Court concluded that some conception of its duty in the matter – – some view of its role as exclusive shepherd of First Amendment values – – required that it cut short the debate and limit what ordinary political processes could contribute to a resolution.  A case about nonprofit ideological corporations became a case about all corporations, and a claim to engage in targeted speech, reading only those who wanted to hear it, was transformed into a constitutional basis for corporate-financed electioneering directed toward the widest possible audience.

Kinsley distinguishes Citizens United from Bush v. Gore, citing the latter as an example of a “disgraceful” Supreme Court decision.  He fails to see the similarity.  Of course, the two are not all that alike, but they share this: a readiness to intervene aggressively and definitively into major, high-stakes political conflict.  That such conflict may have a core constitutional dimension does not always justify this judicial hyperactivity, and there’s certainly no reason to believe that the eventual constitutional choice would not have benefited from sustained public argument over what that choice should be.

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