On a practical level, the Citizens United case is so controversial because advertising works. Viewers of advertisements are thought to be susceptible and suggestible to the ideas presented in advertisements. Opponents of the decision in Citizens United generally believe that corporations have an unfair advantage or that corporate electioneering will corrupt the political process. See Austin, 494 U.S. at 659 (discussing the "unfair advantage in the political marketplace"). A related issue implicated by Citizens United is the need for voters to become informed about the candidates of an impending election by receiving as much information and as many opinions as possible. By restricting certain corporate speech, the electioneering provision of the Bipartisan Campaign Reform Act of 2002 restricted the voters’ ability to receive facts and opinions which were relevant to impending elections.
Section 441(b), the corporate electioneering provision struck down as unconstitutional in Citizens United, was targeted at “certain disfavored associations of citizens-those that have taken on the corporate form.” Citizens United, 130 S. Ct. at 908. Unlike corporations, wealthy individuals and other associations of citizens which were not incorporated were not subject to Section 441(b). But any danger of quid pro quo bargaining that accompanies independent political expenditures by corporations also accompanies political expenditures made by wealthy individuals and other unincorporated associations. Granted, corporations are probably in a position to amass greater wealth more frequently than are wealthy individuals and unincorporated associations. But this just leads back to the conclusion that the actual purpose of the ban on corporate electioneering was to prevent disfavored corporations from being in a better position to reach voters than were the evidently more palatable wealthy individuals and unincorporated associations.
Although the interests proffered by the government in defense of Section 441(b) were legitimate, the attack on independent political expenditures by corporations was indeed fatally underinclusive because corporations are no more inherently corrupt than are wealthy individuals or unincorporated associations which have considerable resources to allocate toward political expenditures. The dissent in Citizens United claims that the Austin rule and Section 441(b) were not implemented for the purpose of “‘equalizing the relative influence of speakers on elections,’” that the real purpose was to prevent corruption in the political process. Citizens United, 130 S. Ct. at 958 (Stevens, J., dissenting) (quoting Austin, 494 U.S. at 660). Even if preventing corruption was the aim, the unconstitutional effect was to detract from the ability of corporations to communicate with voters. It is not up to the legislature or the courts to decide which information may reach voters, except in a few situations, such as when national security is at stake. Nor should the government summarily decide that corporations will not produce “truthful” advertisements before elections. Each free citizen in our democracy should be given the opportunity to consider biased opinions of all sorts and decide for him or herself the “truth” regarding the issues and political candidates of impending elections.
Censoring corporate electioneering by non-media corporations does not purify the political process. Section 441(b) did not even apply to media corporations like MSNBC. Nor did it apply to News Corporation, the owner of Fox News. Neither of these corporate giants can be reasonably characterized as completely “truthful” or “unbiased.” From a multitude of organizational and individual sources, American citizens are subjected to an incessant stream of biased and arguably false advertisements and news reports. Opinion sharing, however, should not be viewed as a problem. As the Greek playwright Euripides once wrote, “[m]an’s most valuable trait is a judicious sense of what not to believe.” See WorldofQuotes.com (Oct. 8, 2010, 7:41 p.m.), http://www.worldofquotes.com/author/Euripides/1/index.html. The voters of America should thus receive all available information and freely decide for themselves what to believe.
It might be true that corporations occupy an inherently advantageous position because of artificial legal characteristics, including limited liability, perpetual life and the resultant aggregation of wealth. See Citizens United, 130 S. Ct. at 905 (quoting the majority in Austin, 494 U.S. at 658-59). Censorship, however, is not a constitutional solution. On the other hand, one permissible solution is for wealthy individuals and unincorporated associations to incorporate and gain an advantageous position while “equalizing the relative influence of speakers on elections.” This solution is a plus-sum game because voters will be able to make better-informed decisions if they are able to hear all the arguments, some of which are put forward through corporate electioneering. Likewise, unincorporated associations of citizens will be able to match the advertising power of corporations if they incorporate. Finally, if unincorporated associations have political reasons for remaining unincorporated, they must accept the consequences, which sometimes include unlimited liability, non-perpetual life and less aggregation of wealth.
I agree with the first part of this article. Corporations should be restricted on their political campaign advertisement because advertisement works. Advertisement is the most effective on people with a low education. These people are more prone to believe what is on television. Further, advertisement would also be effective on apathetic voters. Apathetic voters are people that do not follow the political process and are not well informed on the issues. Because these people do not know the issues involved in the campaign, they would be more susceptible to believe the propaganda contained in advertisements.
ReplyDeleteFundamentally, our democracy does not require American citizens to be educated to vote. I agree that the quality of our democracy would increase if all voters were educated. But corporate “propaganda” should not be singled out as restrictable, while propaganda from other sources is allowed to flow freely. Further, what it sounds like you’re saying is that many voters are too uneducated or apathetic to intelligently decide what is true. That elitist idea, when carried to its logical conclusion, turns into the idea that uneducated and apathetic citizens should not even be allowed to vote. Luckily (or unluckily?), our Constitution does not restrict the ability of uneducated and apathetic citizens to vote. If the root of the problem is a lack of education, the proper remedy is to amend the Constitution to require an education/apathy threshold for eligible voters. Or, even better, another remedy is to create a society where all voters have the desire and the means to obtain a sufficient education and level of interest in the political process. Admittedly, both of these solutions are “high hurdles” to attain. Nonetheless, censoring corporate speech is not the proper remedy because it fails to address the root problems, which are apathy and a lack of education.
ReplyDeleteI am not saying that corporations have to censor their advertising. I was only agreeing that advertisement works. Because it works so well, allowing a corporation the opportunity to launch a campaign in favor of or in opposition to a political party would result in a very successful campaign. The analogy to the under educated and apathetic voters was just to show who are the most susceptible to believing propaganda. I am not saying that these people should not be allowed to vote. However, I am saying that when they vote it should be a well informed decision, instead of a decision that is based on propaganda. I do understand your argument that other groups can use propaganda. However, corporations have more resources available to them and are able to reach a larger viewing audience. Therefore, a corporation’s campaign strategy will be more effective than the other groups that were mentioned.
ReplyDeleteSo we both agree that advertising works, but we disagree on the reason that it works. You think it works because uneducated and apathetic people cannot tell the difference between accurate information and false propaganda. I, on the other hand, think it works because it maximizes the information to which voters have access, thereby allowing them to become educated on the issues as they freely decide which candidates and causes to support. Additionally, if, for example, someone has a degree in a foreign language or advanced math, such education is not even relevant to that person's ability to identify political propaganda. Besides, the opinions of highly educated individuals span the entire political spectrum. It's not like education creates consensus on political issues. Moreover, I doubt that apathetic voters are susceptible to propaganda. If they even vote, they do not care whether political advertisements are true or false. Nor are they likely to spend much time in discernment. By definition, apathetic citizens are indifferent.
ReplyDeleteI would like to see some reliable statistical information which supports your claim that politically-involved "corporations have more resources available to them." Some corporations are tiny. Some are huge. Likewise, the resources of unions and other unincorporated but politically-interested associations vary from very minuscule to very formidable.
Okay, we agree that advertising works, but we do not agree on who is more susceptible to propaganda or what role education plays in political campaigns. I would like to postpone this debate till I have had a better opportunity to research this topic.
ReplyDeleteIn regards to the allegation that corporations have more resources available to them, I think this is common knowledge. I understand that corporations come in different sizes, but think of the wealth of the top 100 corporations. If these corporations would join together to support one campaign, then imagine the size of the political contribution and the effect of the campaign.