Citizens United v. FEC, 558 U.S. 310 (2010), is a well-known (or notorious) case about money and politics. It was rightly decided. The First Amendment’s protection of freedom of speech is more important than restrictions on election spending in the name of preventing the appearance of corruption, or equalizing the influence that differing groups have over elections. The legal reasoning of the majority opinion is stronger and more compelling than the reasoning of the dissent. Citizens United, a corporation devoted entirely to political goals, had something to say about the political candidate Hillary Clinton in 2008, and they were entitled to say it by means of a documentary broadcast that entailed the expenditure of corporate funds. Christian idealism is not advanced by mandatory restraints on anyone’s political speech. Our speech with each other may have restraints imposed by conscience, sensitivity or respect, but none enforced with a sword.
Underneath the labels by which the majority and dissent characterize their arguments, there are issues which a Christian idealist wishes to capture and explore. To be more precise in my theological language, I am postmillennial and anti-preterist. Those are terms which are familiar to Christian eschatology, but for the sake of this discussion, ‘Christian idealist’ will do. I am interested in the application of legal and political tools to pursue a religious ideal. The ideal I seek has nothing to do with ‘making anybody do anything.’ There is no sword of the law in the City of Peace, described in Revelation 21 and 22. I am a lawyer though, and we get to the Holy City by using the tools we have. Wherefore the law was our schoolmaster, to bring us unto Christ. Gal. 3:24.
The Supreme Court decision in Citizens United was issued in 2010, so there has been time to review its impact. The decision did not act to open the floodgates to corporate money, as its opponents feared. There is a huge amount of money floating around the political landscape, but not directly from Fortune 500 companies. In 2020 Michael Bloomberg spent over one billion dollars in his political efforts to obtain the nomination of the Democratic Party for the Presidency, but it was substantially his personal money and only indirectly came from any of his corporations. No different decision in the Citizens United case could have prevented him from so funding his own campaign efforts. During the 2018 election cycle, billionaires gave in excess of $600 million in political contributions. No different decision in the Citizens United case would have legally compelled any difference in those political contributions from politically-active billionaires, whose source of funds is their personal fortunes.
First Amendment Rights versus the ‘Appearance of Corruption’
The Citizens United decision did effect a major change in campaign finance though, for a different reason. It reasserted the primacy of First Amendment rights in evaluating the scope of the arguments advanced. ‘Can people spend and speak freely over the issue of politics?’ is a different question than ‘Does it look corrupt, so that it discourages people from believing in their political system?’ Or ‘Is it fair to all groups and people?’
As in many legal (or theological) arguments, the question initially posed factors heavily in the conclusion ultimately reached. Although there are many arguments presented and much ink spilled over corporations in Citizens United, it isn’t really a decision about corporate law at all. No court in the state of Delaware, where the nation’s corporate law is really practiced, would write about corporations in such a simplistic way. Citizens United is a decision from a set of politically-appointed judges located in Washington, D.C., about controlling political speech, about controlling political parties and their candidates and controlling political money.
Over time, when speaking of campaign finance the Supreme Court gradually enlarged the scope of what counted as “corruption or the appearance of corruption,” when speaking of campaign finance law. These laws stopped people and corporations, (including unions, unincorporated associations of people and for-profit and nonprofit corporations) from doing what they wanted – spend money to influence elections. Congressional laws controlling or prohibiting such conduct had to have some basis, needed some reasoning. The Congressional reasoning asserted was to stop corruption or its appearance. That was what justified restraints on 1st Amendment activities, like producing and broadcasting an unfriendly film about Hillary Clinton right before a primary election.
There are already criminal laws against bribery, meaning a quid pro quo deal (you give me money, I vote your way’ type of corruption). The legislative effort to stop corruption or its appearance, for purposes of campaign finance law, took on a subjective character when different courts evaluated legal challenges at different times. The connotation of the ‘appearance of corruption’ expanded and contracted. This appearance-of-corruption-rationale become a code phrase, a holding bucket, for other goals that some people (typically, who call themselves ‘reformers’) had which were not universally shared and were less palatable legally. One of the underlying motivations for the reformers was to equalize opportunities for all people to influence elections with financial contributions or expenditures. Since all poor people cannot be made rich to have such influence, the obvious solution (in their eyes at least), was to make the rich people ‘act poor’ – that is, stop them from spending their own money.
As one might expect, those monied, clever election-influencers routinely found ways around whatever campaign finance laws were in place at various times, to successfully provide funds for their political goals. Campaign finance laws had to be expanded in waves over time to stop these bad actors from circumventing the spirit of the law. If you go to the website of the Federal Election Commission today and seek to print out the federal election law – just the federal laws, not the regulations in the Code of Federal Regulation – the compilation dated February 2019 is 256 pages. Federal election law is the poster child for a complicated, brittle, intricate set of laws.
Narrowing the Definition of Corruption or its Appearance
The Citizens United decision substantially narrowed the subjective definition of what counted as corruption or the appearance of corruption. (See The End of Campaign Finance Law, by Michael S. Kang, Virginia Law Review, March 2012, for a sober and comprehensive discussion of the Citizens United Court re-definition of ‘corruption’). The Supreme Court in Citizens United truncated the connotations of “corruption or the appearance of corruption,” which undid much of the justification for Congressional legislation limiting freedom of speech and association.
The Supreme Court’s definition of this important phrase had become ‘if money influences something or somebody somewhere in the election cycle, then that’s corruption or the appearance of corruption.’ Blended within the advocacy of those who advanced the broad definition of corruption, there was a desire to ‘equalize’ access and the opportunity to participate in the electoral process. Such a desire became very obviously, preference for some participants as opposed to others. Since the government cannot Constitutionally enact laws to openly prefer some participants over others in election campaigns and electoral speech activities, as several Supreme Court cases held, these equalizing impulses had to swim like frogmen under the arguments over the breadth of the definition of corruption. In the eyes of its advocates, the benefit of ‘leveling’ access had to mask itself in the guise of a different virtue.
The corporation, Citizens United wasn’t challenging the law because it was interested in direct contributions to any candidate. It had its own agenda. After the Citizens United case, the definition became: ‘is there a large contribution or bribe directly to a candidate or his committee? If yes, maybe that’s corruption – otherwise, if not, then it can’t be corruption.’ If there’s no quid, then there’s no quo (as in quid pro quo), and hence, there is no corruption. The rational for Congressional control disappeared. Justice Kennedy in Citizens United narrowed what counted as a quid. Cases following Citizens United completed the transformation of the working definition of ‘corruption or the appearance of corruption’ into something much less vague, less broadly-encompassing, and less useful as a means of Congressional legislation and bureaucratic control.
The Supreme Court Majority Says Influence in Politics is Okay
In Citizens United Justice Kennedy wrote for the majority that influence was okay; in fact, that was what political engagement was all about – influencing elected officials with respect to desired legislative outcomes. To present an example, a large campaign donation is given to a candidate, given by a corporate donor. Later, the contribution provides the donor a chance to have its lobbyist have a ten minute, face-to-face conversation with that candidate concerning a particular legislative proposal, now that the candidate is an elected official. From Justice Kennedy’s viewpoint, that was perfectly fine. In fact, it’s rather the point.
From Justice Stevens’ dissenting viewpoint, that is corruption or the appearance of corruption. If everybody can’t make large campaign donations and get a ten-minute conversation with an elected official, then nobody should. Using money to secure access (‘face-time’ as they say) with an official looks like corruption to Stevens. The ‘nobody should’ part of Stevens’ argument requires enforcement and plugging loopholes in the enforcement effort.
Enforcement requires a body of appointed federal officials, known as the Federal Election Commission (and their entire staffs), operating on the basis of comprehensive federal rules, found in the Code of Federal Regulations. The Regulations derive their authority from overlapping Congressional laws (the 256-page compilation) and judicial interpretations of the laws. The Commission has the power to issue new regulations and further clarifications, to invoke regulatory discretion with respect to the parties subject to actual enforcement, to conduct hearings and seek further judicial enforcement, to issue decisions and advisory opinions to those who might find something confusing or inconsistent about all this, etc.
Justice Stevens’ underlying rationales are unpersuasive. There is something fundamentally self-contradictory about any argument which contends: ‘we’re going to level the playing field for the average person’ – and then creates a statutory and regulatory regime, complete with a federal bureaucracy, which requires the services of highly-compensated consultants and teams of attorneys to understand and navigate. Just as the Citizens United decision is not really about corporations or corporate law, it is not really about the participation of average citizens in politics.
The Film Hillary: The Movie, General Corporate Treasury Funds and 2 U.S.C. §441b
The Citizens United case did not seek to overturn all or even a majority of federal election law. At issue was one particular provision, 2 U.S.C. § 441b. In 2008 the nonprofit corporation Citizens United wanted to release a documentary film about then-Senator Hillary Clinton. Their film, Hillary: The Movie was critical of Hillary Clinton and the company wanted to run their documentary on cable television within 30 days of primary elections (running certain broadcasts with certain contents within 30 days of a primary election is called an “electioneering communication.” See 52 U.S.C. §§ 30104(f)(3)(A) and 30118(c)(1)).
Running such a documentary costs money, and the funds to support this effort would come from the company’s general treasury funds. The source of funds from the general treasury is important for reasons that concern publicly held corporations, but little to do with nonprofit companies organized for political purposes like Citizens United. Citizens United was not a for-profit corporation making widgets to turn a profit for shareholders who held equity share interests in the hopes of capital appreciation, income growth, share price appreciation, balancing a portfolio, or hedging risk by selling options, etc. The company only existed for political purposes.
The company could not legally have differing classes of shares or shareholders, or make public offerings of shares, or make or receive private tender offers, or have its shares traded on any exchange. There were no proxy votes for seats on the board of directors. You could read business publications like Barron’s for a million years and never read one word about any company like Citizens United. So the entire discussion about corporations in the Citizens United decision (and the perception it created in the public mind) is misplaced, to put it charitably. Whatever treasury funds the company had, it had acquired from politically-minded people for political purposes. There were no vaguely ill-informed shareholders who really didn’t know or care much about politics; no shareholders who were really gigantic pension funds having massive stock positions, no day traders, hedge fund managers or venture capitalists, or even socially-conscious shareholders who wished the company to disinvest in fossil fuels.
The company, managed by its sophisticated political operatives, was concerned that the FEC would apply criminal and civil penalties if the company broadcast its documentary about Hillary using its general treasury funds. The company had this well-founded concern because it was deeply engaged in politics exclusively and knew well the pertinent provisions of federal election law, namely, 2 U.S.C. §441(b), which prohibits corporations and union from making independent expenditures from general treasury funds for electioneering communications. The company pre-emptively went to federal court to ask the court to protect it from the penalties associated with violations of section 441(b), because, it argued, it was unconstitutional to penalize it for broadcasting its documentary. The company said it was protected by the First Amendment to the U.S. Constitution in the same way any citizen would be, who for a few dollars wanted to print up some pamphlets about Hillary Clinton and leave them at local laundromats and grocery stores.
The subject matter was not new to the Supreme Court. Prior to this case, there was a long history of cases which had reached the Court concerning campaign finance and the interplay between rules governing campaign finance and the rights that differing organizations might have. Justice Kennedy delivered the opinion of the Supreme Court in Citizens United, and it was not accidental that he was the author of the majority’s opinion. In a previous case, twenty years earlier, Justice Kennedy had delivered a stinging dissent in a case called Austin v. Michigan Chamber of Commerce. The Austin case had gone the other way, that is, upholding campaign finance restrictions. The dissent in Austin, circa 1990, became the majority and carried the day in Citizens United, circa 2010. The times they were a -changin.’
Independent Expenditures and the Absence of Quid Pro Quo
The term ‘independent expenditures’ has to be briefly explored to understand the arguments. Those are certain defined expenditures (called ‘express advocacy’) which are made on behalf of a candidate but are uncoordinated; they are made independently of the direction of the candidate and his campaign. Those expenditures are like those from an individual or our average citizens’ club who aren’t directly involved with any candidates or their campaigns, but who feel nevertheless they would like to express their opinions in some manner that entails expenditures at the time of an election or primary. If our engaged citizen or private citizens’ club only wanted to spend $50 on their pamphlet campaign, no one would care. But if they organized as a nonprofit corporation and wanted to spend thousands of dollars to make a film about advancing their opinions, then they are subject to the jurisdiction of election finance law.
Our private citizen’s independent expenditure of $50 isn’t going to buy him any special influence with Hilary Clinton’s opponents; there is no risk of corruption or its appearance. Michael Bloomberg’s expenditure of one billion dollars of his own money in the recent presidential campaign didn’t create the appearance of corruption. Bloomberg could not be corrupted by the use of his own money for his own campaign. Contribution and expenditure limits on those types of expenditures would have no underlying rationale and be hard-pressed to justify their existence as laws in a courtroom testing their constitutionality. To corrupt someone, there needs to be a deal – money for a vote – a quid pro quo, or at least the appearance thereof.
Independent expenditures never fell neatly into the category of the use of campaign finance money which might cause corruption or its appearance, because if they were truly independent, there’s no quid pro quo regardless of the amount. The candidate is never involved; he or she is off somewhere else, doing something else, while the independent expenditure person is simply acting on his or her or their beliefs. There is no exchange of money from a Machiavellian donor for the corrupted vote of an elected official. When the expenditure is independent, there’s no exchange at all.
Hypothetical Discussions of Hypothetical Candidates, Stark Judicial Choices for Real Litigants
Since we are talking about complex human conduct and webs of influence, it isn’t difficult to construct hypothetical examples which support the rationale of campaign finance money derived from corporate treasuries creating the appearance of corruption. Nor is it difficult to construct hypothetical examples which contradict and disprove it. Considerable space in Supreme Court opinions is given to extended examples of the conduct of hypothetical candidates, committees, corporations, donors, voters and elected officials.
The difficulty with these hypothetical construct discussions is that they are being weighed against allowing some person or some group of real people, or disallowing these real people, from exercising rights which are vital: the right to speak on matters of national importance, to associate with people of like political views, to engage in the political process by donating or spending money and to influence its outcomes. For Justice Stevens and reformers generally, political influence, like salt or sugar, apparently is desirable in small amounts but dangerous when used to excess.
Election finance law compels a stark judicial choice; either the company can run its Hillary documentary immediately before a primary election involving Hillary Clinton, or it can’t. We’d like a judicial decision as complex as advanced nuclear physics, a studied application of a graduated range of election finance laws, flexibly considered, intelligently applied, sensitive to each participant’s rights, which accommodate the entire range of human conduct, motivation and intention as it relates to democracy, free speech, advocacy, campaigns for election to office and their necessary finances. But we are left with decision-making about laws that must be as subtle as flipping an on-off switch. Elections are adversarial. The players need to know – are we within the rules running our documentary, or are we not? Dura lex, sed lex. The law is harsh, but it is the law.
Justice Kennedy Advocates for Experimentation with New Forms
“Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech . . . expressly advocating the election or defeat of a candidate.”
So began Justice Kennedy in his opinion, announcing what the law was. The law was about to change; it is rather within the power of the Supreme Court “to say what the law is,” Justice Kennedy wrote (p. 365), citing to Marbury v. Madison (1803).
“The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” (p. 372).
Kennedy concluded, citing his own opinion in a previous case. Whatever else we may think about some of Justice Kennedy’s opinions, he nailed it here. Rather than arguing pointlessly about the corporate form and what it was, Justice Kennedy points to the future.
“Congress may not prohibit political speech, even if the speaker is a corporation or union.” (p. 376.) So opined Justice Roberts in his concurring opinion. As Justice Scalia noted in his concurring opinion, the First Amendment is written in terms of “speech,” not speakers. (p. 392). Justices Kennedy, Roberts and Scalia make the crux of their arguments revolve around free speech and the First Amendment. Rather than talking about corporations, we ought to be decide whether the subject at hand is free speech and advocacy, or is the subject the effect of money in political campaigns and on political candidates and officials. Then we’ll know more clearly whether or not we agree that Congress has the power to eliminate, control, suppress or regulate either. That would be equally true even in a millennial world of universal and sincere Christian faith, anywhere elections are held and constitutional democracy is practiced.
Historically, a few corporations were active at the time the Constitution was written, although generally their scope of operations was narrow. A Quaker corporation petitioned Congress against slavery in 1790. They distributed pamphlets and communicated through the press their opposition to slavery. The entire debate about contemporary campaign finance regulations cannot turn on what a tiny handful of corporations did in 1790. The debate cannot turn on guessing what thoughts the founding fathers had at that time about corporations. We drift without an anchor when we consider whether or not the founding fathers’ words, which never mention corporations, ought to have such corporate notions as limited liability, access to general treasury funds, perpetual existence, minority shareholder rights, etc., read into their Constitutional pronouncements. Justice Kennedy did better by pointing to the future.
Skepticism of such analytic techniques is justified, such as purportedly mind-reading the authors of the Constitution where they have not written down their thoughts and enacted them into Constitutional provisions. Whether one liked or disliked the documentary film about Hillary Clinton, it most assuredly was political speech, and political speech was most assuredly understood by the founding fathers. The political nature of such advocacy does not change because of its funding source or its organizational structure.
The language of the Constitution, or the Declaration of Independence, or the Federalist Papers, or predecessor documents like the writings of the political philosopher John Locke, do not mention, turn on, or consider the special advantages or characteristics of corporations. But they are preoccupied with ideas about freedom of speech, freedom of the press, freedom of association and political advocacy, freedom of conscience, etc.
Corporations as Red Herrings when the Discussion is Really over Political Money
The preoccupation with corporations in these judicial debates is a diversion, although it must be acknowledged that Congress started this out years ago. The influence of money in politics should be considered directly, not indirectly through corporations. Fishy debates whether or not corporations should be considered as legal ‘persons’ with 1st Amendment rights, how they may use their treasury funds, whether they should rely on associated PACs instead for political engagement, etc. are a school of red herrings. As used in both the majority and dissenting opinions, the meaning of the term ‘corporation’ is like an argument among blind men over the various parts of an elephant. One lays hold of the trunk, another the leg, another the tusk, and each declares that what they have in hand is the true collection of corporate rights, powers and prerogatives. Congress has long legislated in this area, since 1907 and the Tillman Act, but the explosion in the use of corporations and the corporate form has dwarfed the original intentions of that Congress, which themselves were not well-thought out.
Commentators on the decision, whether they agree or disagree with the underlying decision in Citizens United (most do not), follow this illusionary trail of misplaced debate. Rather like Humpty-Dumpty as depicted by Lewis Carroll, the various authors of the legal opinions and case commentaries mean by the term ‘corporation’ nothing at all but what each one chooses it to mean – neither more nor less. A more comprehensive, but still incomplete inventory of corporations is presented below, with examples in parenthesis:
– a publicly-held Fortune 500 type company with huge sums of money in its treasury controlled by an individual or small group with very definite political agendas and who aren’t concerned with what any of the shareholders think (any company owned by Michael Bloomberg or Jeff Bezos);
– a publicly-held Fortune 500 type company with huge sums of money in its treasury that occasionally gets motivated about politics, but is generally politically neutral, or would like to be, and sometimes cares about what the large shareholders think (AT&T, ExxonMobil, Facebook, General Motors);
– wealthy, powerful for-profit high-technology companies controlled by high-tech socially active guru-types who have definite opinions about many social or political issues and are sometimes sensitive to the opinions of their employees (Tesla, Apple);
– any person or group of people who have filed incorporation papers, including millions of individuals practicing as sole proprietors under a corporate form (the contractor who came to remodel your bathroom);
– millions of people in small for-profit corporations, with shares privately held and never traded, typically one or a handful of owners (the machine shop in your vicinity that manufactures metal parts, or the company that sends out a homecare health aide for your elderly parent);
– hundreds of thousands of middle-sized for-profit corporations with no political interests, whose shareholders often have a personal or family relationship, which are large enough so the shares are often held indefinitely and ultimately are passed through decedent’s estates to other family members, (many of the companies you see in a typical industrial park, or companies organized to buy and manage real estate investments);
– nonprofit corporations that have some social betterment interests apart from politics, but occasionally stray onto political territory (Rotary, Lions Club);
– nonprofit corporations with a single, dominant political or social interest (Wisconsin Right to Life, Inc.; Massachusetts Citizens for Life);
– for-profit corporations that have one dominant single-interest issue (pipeline or fracking companies like Sunoco or its affiliates) which frequently places them in the public eye or in courtrooms as litigants;
– nonprofit corporations which are vehicles for channeling large sums of political money, year after year, for pure hardball politics and nothing but (anything that Karl Rove or George Soros or another high powered political operative is engaged with);
– nonprofit corporations which serve some well-defined business group or identifiable interests (Chamber of Commerce, Sierra Club, National Rifle Association);
– nonprofit corporations only nominally independent but tightly tied to a particular candidate, his family or his political committee (the Bush family had, and probably still has, some corporations of this type, or any company controlled by or involving the Clintons);
– nonprofit corporations who have a broad agenda and support many candidates, usually from one of the two major political parties, which might be characterized as liberal or conservative, etc., without being excessively attached to any one candidate or issue (Public Citizen, Institute for Free Speech, Citizens United);
– all media corporations, large and small (ABC News, Fox News, MSNBC, Breitbart, the New York Times, the Washington Post, West Chester Daily News, etc.)
Those are all corporations. And my list is incomplete. Narrow legal debates over whether:
– corporations have 1st Amendment rights of free speech like individuals;
– may engage in issue advocacy when an issue affects their economic interests, or whether they may so engage regardless of any nexus to their economic interests;
– should or should not be allowed to participate in politics directly or indirectly by means of contributions or expenditures, whether independently given or expended or not;
– may lawfully participate in politics with their general treasury funds or through affiliated PACS with voluntarily-designated financial resources or through SuperPACS (independent expenditure only), or by means of ‘soft money’ (raised for general purposes like get-out-the-vote activities outside of regulations);
– may participate with designated PAC money by means of a relationship specifically identified with a particular candidate, committee or political party;
– may act with or without financial limitations or disclosure requirements immediately prior to an election or a primary, or at any time between elections;
are all misleading.
To read the judicial opinions attempting to parse these issues is like observing an argument over the characteristics and interests of all red-haired people, because the author/judge has met five of them. In practice, the narrow judicial opinions explode into a galaxy of statutes, rules and regulations administered by the Federal Election Commission. A few years pass, another case arises, the next corporate litigant arrives, with its colors changed like a chameleon, having frustrated the intention of the rules in the eyes of its political and bureaucratic adversaries. New rules and rulings are required.
By way of comparison, all labor unions are much more like other labor unions than all corporations are like other corporations. There are historical and political reasons why the courts have tended to balance the rights of the unions and corporations in terms of political engagement. As legal entities though, different unions have only narrow differences in their legal structures and purposes, compared to the vastly broader range of differences in corporate structures, ownership and purposes. We don’t need the legal community of one particular state to develop an expertise in ‘union law,’ the way we need a particular state, Delaware, to maintain an expertise in corporate law.
The Inevitable Reduction in the Meaning of the Word ‘Corporation’
Hence, judicial opinions necessarily reduce the corporation to a manageable shadow. The use of ‘corporation’ is a code word from each author, to signal certain selected and useful examples from the lengthy but still incomplete list above.
FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) is an example, where the Supreme Court acknowledged that the purpose, structure and source of operating income of the particular pro-life litigant corporation was different. The factual basis the Court had developed, or rather assumed, about corporate political involvement had been previously decided in Buckley v. Valeo, 424 U.S.1 (1976). So the Supreme Court carved out an exception for the corporate litigant in Massachusetts Citizens for Life. That exception got a catchy acronym-phrase in later judicial opinions, MCFL corporations, judicially exempted from certain campaign finance regulations because they were formed for pure advocacy, had no shareholders and did not accept business or labor financial contributions.
The leading court cases on the issue are tiresome to read through, and the judicial basket of corporate-money-in-politics cases is disharmonious. Typically, as cases are first presented to the FEC, then presented on appeal to a federal court, then appealed again to the U.S. Supreme Court, the decisions are like watching a gambler throw dice onto a spinning roulette wheel. The results are fascinating, but never present adequate guidance for the next throw. The Citizens United decision reversed a previous case, Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). This invoked the usual discussions about the importance of precedent (‘maybe we ruled wrongly before, but for the sake of consistency shouldn’t we rule wrongly again now?’). At least by quieting the madness, the Citizens United case brought some welcome relief.
Freedom of Speech is Simpler and Safer when Compared to the Alternatives
As noted above, we, as Christians, should support and affirm the decision in Citizens United. Rights of free speech and association are more well-grounded and predictable than any set of principles advanced to limit those rights in the name of preventing something as vague as “corruption or the appearance of corruption.” Anything can be ‘corrupt or demonstrate the appearance of corruption.’ If you like Dorothy more than the Wicked Witch of the West, whatever the Wicked Witch does is corrupt or presents the appearance of corruption. But the same conduct is laudable political advocacy, if your preference is for the policies or hocus-pocus of the Wicked Witch.
Christian Witness Should be Defended against Attack under the Guise of Censoring Hate Speech
We need the 1st Amendment. The attack on the witness, speech and rights of Christians is well-organized and persistent. For example, the pro-life political group Family Research Council (FRC) is a nonprofit corporation. It is characterized by the left-wing Southern Poverty Law Center as a “hate group” because of FRC’s uncompromising advocacy for Biblical values. The efforts to censor and suppress the speech of FRC by so distorting and mischaracterizing it as hate speech are persistent. It would be naïve to believe that, given the opportunity to do so, the political left would not persecute, censor and hound FRC out of existence, or at least entirely deny it any platform by which to operate. Examples of these attacks on Christian speech, Christian beliefs, Christian organizations and Christian witness could be multiplied almost without number. As Christians, we affirm unapologetically the rationale of Citizens United because it is based on 1st Amendment values.
Each generation has its own trials. The conflict in which we are engaged requires from us a vigorous assertion of 1st Amendment values. One element of that insistence is to defend the Supreme Court’s decision in Citizens United and its broad rationale that freedom of speech is guaranteed in terms of speech, regardless of the speaker. The 1st Amendment is like a wall; it will not disappear if one brick is taken away, but the persistent attempts to undermine it from anti-Christian sources are not a one-time gesture. Our defense of that faith, once for all delivered to the saints, is not a one-time response.
Justice Stevens’ Dissent – Unpersuasive, Misguided, Arbitrary – and Yet, Like an Uncashed Check, Worth holding in Reserve for Another Day
Justice Stevens penned a lengthy dissent in Citizens United which attempted to narrow the issues and reduce the scope of the discussion. “All the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period,” he opined. The thirty-day period he referred to is that period before a primary election; a necessary part of the definition of an ‘electioneering communication.’
The majority saw the case as being about Constitutional rights, as the minority did in the case, Austin, which preceded Citizens United. Stevens saw the case as being about the right of Congress to impose certain legislative controls on campaign finance. These controls could withstand a Constitutional challenge in Stevens’ opinion (remembering that Congress needs a good reason to tell either people or organizations they’re not allowed to spend their own money). Stevens argued such legislative controls were necessary to impose on corporations (he always means the big, public ones), which had available treasury funds to assist a favored candidate or oppose a disfavored one. Such corporate assistance, in Stevens’ view, necessarily implied favoritism for donors, the appearance of corruption in the minds of the public and a fundamentally unbalanced system of democracy.
Congress is better at politics than economic theory. The economic theory of the Congressional campaign finance laws was that such corporate treasury money was originally acquired in the general course of general business operations, which business was not politically motivated. As the theory goes, it would be unfair to use funds gathered by selling widgets to advocate for candidate Y, who then could be persuaded to vote that all widget manufacturing corporate income should receive certain favorable tax treatment. Such influence would represent corruption or its appearance. In Stevens view, the Congressional effort to prohibit such funds from being used to achieve a political end was justified – it withstood the Constitutional challenge brought under the 1st Amendment. Stevens viewed it as ‘reform.’
Do Corporations Ever Care Who Wins an Election?
Stevens makes an argument about the important differences between corporate and human speakers, which arguments have some force. But Stevens’ arguments conflate different concepts. In the 1st Amendment free speech is a right not defined in terms of who is speaking. The vast majority of corporations are not Fortune 500 companies; the vast majority of corporations are small affairs, organized by one person or a few people. Corporations which engage in politics are a separate breed of corporation in any event, really having little to do in practical terms with the millions of corporations, the vast majority of them quite small, which are engaged in making money.
In 2019, over 2.1 million tax returns were filed by ‘C’ corporations and over 5.2 million tax returns were filed by ‘S’ corporations – 7.3 million entities. Over 3.9 million partnerships filed tax returns in 2019. Since partnerships are included in federal election law, about 11.2 million entities are having their rights to participate in the political process decided by federal election law, the FEC, and about thirty relevant court cases. (Data source is the 2019 IRS Data Book, available online). Even if only one organization in one thousand wishes to be politically involved, that leaves over 11,000 organizations to fit into the regulatory shoehorn
Since a corporation is a fictitious legal entity, it actually doesn’t care who wins any election; only people care about that. The exercise of almost any political speech is bracketed with the expenditure of some type of funds. Even placing signs or sending out mailings costs some money. Trying to make a hard distinction between an abstract right of free speech, and the expenditure of the funds necessary to publish, print, disseminate such speech is problematic.
$70 Billion Annually, but that’s Okay, Lovable Mickey Mouse Would Never Corrupt Anyone
Media companies, “the press,” whose speech is protected explicitly in the 1st Amendment, are invariably corporations. The media companies are often owned by other corporations which are most definitely in the business of making money in large, chunky amounts. The Walt Disney Company owns ABC news; Disney’s annual revenue is in the vicinity of $70 billion – which raises the question, if you are talking about the influence of money in politics, shouldn’t Disney’s annual $70 billion revenue, which stands behind ABC news, figure into the discussion? Might Disney Corp. have certain political interests or viewpoints that are carried forward by ABC news? The annual revenue for the company Citizens United in previous years 2010 – 2013 was about $10 – $15 million.
Nonprofit corporations number about 1.5 million in the United States. The vast majority of those are not concerned with politics, but some are exclusively. Political advocacy comes chiefly from groups organized for only that purpose, funded often (but not always) by a small set of very rich individuals who have access to large sums of money. But even these individuals do not have the billions of dollars that Michael Bloomberg has personally (about $60 billion), and not the kind of money the Disney Corp has in which to bathe ABC news. For purposes of comparison, Fox News generates about $5 billion annually. The Democratic former candidate for the nomination as President, Tom Steyer, has a net worth of about $1.6 billion, and the liberal activist George Soros has a net worth of about $8.3 billion. The estimated net worth of Charles Koch, a conservative activist, is about $50 billion. None of those financial resources are effectively reached by campaign finance law.
Justice Stevens Goes Off on Corporations, without advancing the ball in any direction.
Stevens opinion doesn’t spend much effort distinguishing between any of these entities or people, because that isn’t his interest. His interest in campaign finance law revolves around approving of Congressional efforts to keep excess money out. Incumbents in Congress love virtue, after they’ve been elected to office. Stevens may have a worthwhile goal, or at least a goal worth discussing, but the lengthy dissertation he engages in about corporations fails to grapple with essentials. Stevens identifies some distinctives to the corporate form which differentiate it from a human speaker and articulates some corporate history. We all agree that a person is different than a corporation, and that small percentage of corporations have very large amounts of money. There are many ways people organize and many ways organizations acquire assets and power, any of which might impart the benefit of the corporate advantages of perpetual life, limited personal liability, and significant tax advantages; any such organization is enabled by state legislative acts and could not exist without the respective states authorizing their existence.
If large sums of money came into the election cycle from limited partnerships or limited liability companies, professional partnerships, unincorporated general partnerships, chess clubs or amateur slow-pitch softball teams, Stevens would be equally concerned to defend congressional efforts at regulation, and equally opposed to finding constitutional defect in the regulatory scheme.
The real bottom line for Stevens is that if you have too much money, in the context of adversarial politics, then that is inherently unfair. Stevens believes there ought some rules about it. Congress was justified in writing such rules, which even Stevens calls “intricate” (an understatement if ever there were one), and the Supreme Court is not justified in pulling one of those intricate rules from the pile without upsetting the entire regulatory structure.
A Brief Excursion into PACs, which doesn’t change anything
Stevens points out that the company Citizens United also had an affiliated political action committee (a PAC), which is a separate corporation, which had abundant amounts of money to finance its production and dissemination of the Hillary movie. PACs are highly regulated and must disclose their donors, make monthly reports, identify their receipts catalogued into ten separate categories, the total amount of disbursements catalogued into twelve separate categories, etc., etc. The bureaucratic burden is heavy and excludes any organization that doesn’t have the money, personnel and expertise to bear it every week of the year. At the time of the Citizens United decision, there were less than 2,000 PACS in the country. (per Justice Kennedy, p. 338). This simply highlights the differences in the scope of the argument, Justice Kennedy is talking about all organizations who are for-profit corporations, Justice Stevens is talking about that small proportion of corporations who have the vast financial resources to ‘move the political needle’ – even though, Citizens United as a company doesn’t fit that profile.
The Sprinter Fair Weight Determining Commission Will Not Make it All Better
It isn’t effective to attempt campaign finance regulation of people or organizations with too much money. What if you chop too much money into ten equal piles, and then steer it cleverly toward the same end? The vague notion of influence has never been corralled by campaign finance laws. A heavy regulatory overlay doesn’t make it better. If you put weights on sprinters to equalize the opportunity to win, that requires the Sprinter Fair Weight Determining Commission to conduct pre-race hearings to evaluate the prior race results, adopt formulas used to determine handicap weights, make the sprinters fill out lengthy forms, enforce the Commission’s conclusions with random inspections of the sprinters’ weight-bearing backpacks, and ultimately adds nothing to the original goal of seeing who runs fastest.
Justice Stevens’ assertion is dubious, that since there was a highly regulated way to finance the Hillary movie in question through its PAC, the company Citizens United should have employed that method, rather than the considerably simpler approach of using its general treasury funds. If I trusted and respected all the people engaged in a certain activity of any kind, I would not expect any of them to effectuate some task in a cumbersome, bureaucratic way rather than a simple, direct way. Heavy bureaucratic overlay is what you inflict on your adversaries, because you don’t trust them. I want to be a realist, but this is no way to get to the Kingdom of God.
In short, the mechanics of regulation are never a substitute for our informed and diligent attention. That is another reason to decisively come down in favor of 1st Amendment rights as opposed to cumbersome regulation of legal forms. Let’s hear what the interested players have to say. No matter how biased or disagreeable any communication is, without a broad variety of sources for communication, our informed and diligent attention is hindered. I would rather read internet propaganda from any source, no matter how manipulative or unreliable (even Vladimir Putin), and evaluate it accordingly, than have anyone decide in advance they will remove it from the possibility of my attention.
The First Ineffective Band-Aid on Corporate Campaign Finance; The Tillman Act of 1907
Corporations do not meet with Stevens’ approval. The very idea of corporate spending strikes Stevens as “potentially deleterious.” (p. 394). Stevens recites some of the history of corporate finance regulation, beginning with the Tillman Act, passed in 1907. The Tillman act was only a paragraph long when enacted in 1907 and prohibited corporations from making money contributions in connection with political elections. For a variety of reasons, it was unenforceable in practice. In a broad sense, Congress has been trying to patch it ever since. The effort to do so effectively has not found success in over 110 years. A commentator, Robert E. Mutch, wrote a book called Buying the Vote A History of Campaign Finance Reform, Oxford University Press, 2014, which gives a detailed and colorful history of the background of the Tillman Act, explaining why it failed of its purposes (although Mutch’s book itself is essentially a 350 page brief against the Citizens United decision). Like Justice Stevens, Mutch spends a lot of time talking about what very rich corporations do and why it’s bad. Like Stevens, Mutch doesn’t really grasp why there are so many problems with passing and enforcing laws which selectively target the very richest organizations.
The Legal Concept of Standing is Pretty Boring, so I’ll pass it quickly.
Stevens dissent covers some technical issues as to whether the question decided by the Citizens United decision was ever properly brought before the Court. The steady stream of cases wrestling over money-and-politics issues moots such technical objections – the importance of money to the political process is too great to respond by saying ‘We won’t hear you, because you didn’t ask in the right way.’
But the Distinction between as-applied and facial Constitutional challenges to a Congressional statute is important, boring or not.
Stevens engages in a more extended discussion discussing the differences between as-applied and facial challenges to the constitutionality of a law. As American Christians, this is a distinction that does make a difference – the Constitution itself and the political philosophy advancing and defending it found in the Federalist Papers, implies that even in a better world, a world less adversarial and more gracious, we would want to pay attention to this distinction.
A facial challenge to a law says that the law is always unconstitutional, all the time. An an-applied challenge to a law says that, in these circumstances presented in this litigation, as to these parties, the law is unconstitutional. To use Stevens’ analogy, it’s the difference between a sledgehammer and a scalpel. Stevens rightly observes that if the federal law is facially unconstitutional, then that will strike down many state election-finance laws as well. Justice Kagan, in a dissent in a later case, is going to make a similar argument in a terse, eloquent way having to do with a statutory campaign finance regimen in Arizona, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011).
Stevens wants to set up the corporate form and corporate treasury as a ‘bad’ source of funds for political activity, and wants that to be balanced against 1st Amendment rights to participate in the political process. The 1st Amendment is much stronger legally, embraced as it is as the very first of our fundamental Bill of Rights, than any argument about corporate structure or funding sources. We want the 1st Amendment to have enormous legal power; we don’t want it trimmed back in discussions about which bucket is used to draw funds from a legal entity which is an organization of people whose purposes may range from no interest in politics, to some interest, to an exclusive interest.
Politics in the Emerald City
Suppose churches were donating millions of dollars to fund political candidates; suppose the newly-invented Ring Committee form of organization (I just made it up) were to donate millions of dollars to political campaigns – would it be any better for Justice Stevens? Obviously it would not. It’s the amount of money available for political influence which most troubles him and the fact that large sum of money are controlled by a small number of people; not its structural source. There is no persuasive rationale to invoke (nor does Stevens find one) for the contention that if the Lollipop Guild from Oz donates $10,000 from its tightly-controlled PAC for the mayoralty campaign of the Emerald City, that’s good, but if the Wicked Witch of the West gathers $100,000 from the general treasury of Swarm of Flying Monkeys, Inc., that is an evil which must be stopped.
Good Munchkins and Bad Munchkins in the Land of Oz
One approach to this, advocated relentlessly by reformers, is that it’s not okay for candidates or parties of the Emerald City to take $10,000 from the Lollipop Guild (a bad union) and definitely horrible if they were to take $100,000 from the Swarm of Flying Monkeys, Inc. (a villainous corporation seeking to distort the political process by the infusion of hordes of treasury cash). The reformers will tell you that should be against the laws of Oz; or at least subject to contribution and expenditure limits and strict disclosure requirements. But it’s okay to gather $1,000 from each of the munchkins and each of the monkeys, until you reach or even surpass $1,000,000. Munchkins and monkeys are nefarious fantasy characters when they organize to give collectively to political candidates and parties, or to influence issues of the day (e.g., Should wizards have term limits? Should fracking be permitted around the Yellow Brick Road?). But according to the reformers, they are wonderfully engaged citizens of Oz when they do it individually. The reformers’ distinctions are neither sensible or enforceable.
From the viewpoint of what we would want as Christians, we are dubious of distinctions which invite subterfuge and evasion. We always see ourselves as individuals, with souls dear to God and saved by Christ, and as part of a corporate entity, the Church. Self-government is our duty as well, as we distinguish between fundamental legal elements like constitutional provisions and flexible legal elements like statutory law. We also draw a line between facial challenges to a statute and as-applied challenges. But in our millennial yet-Constitutional better world, the present-day election-finance statutory scheme needs to be revisited with a sincere request to the legislature to think the whole thing over.
Setting a rusted mousetrap called Stare Decisis to catch clever, nimble mice which know perfectly well how to avoid it
Justice Stevens make a stare decisis argument – existing precedents should not be overruled, for the sake of consistency and predictability of the law. So blandly stated, it seems to make sense. Stare Decisis is a valuable principle of law and legal decisions, and it is implicitly endorsed by the Christian Church, which is why we don’t revisit the doctrine of the triune nature of God every year. The early Christian councils got it right, we affirm that they did on a somewhat regular basis, and we move on from there.
The speed, fluidity and unpredictability of campaign finance players overwhelms stodgy and slow-moving regulations. Congress passes methods and laws for enforcement by the FEC, to chase the players and cash-raising methods around to make them accountable. The rules are perennially outdated in comparison to quick movements of the players themselves. This dynamics in the political drama make campaign finance law a poor candidate for applying the doctrine of stare decisis. The history of campaign finance activities and campaign finance law is a cat-and-mouse game, with the mice lobbying the rules-makers, who may be cats in office now, but who were once mice running for that office. That is why the Tillman Act didn’t work and why legislative enactments and regulatory rule-making multiply – each evasive act of the mouse requires a new rule from the cat.
Stevens throws a few Hail Mary’s, without much success
Stevens argues that the laws precluding Citizens United from airing its documentary are not really a ban, because the company could achieve dissemination of its movie through a PAC or some other method. But the vast array of types of communications (social media, television ads, documentaries, print ads, cable info-broadcasts, internet advertising, traditional and non-traditional media, etc.) simply defeats any sane attempt at passing a law that neatly and fairly passes through every possible permutation of technology and social media to say what is, and what is not, lawful as an alternate means of communication.
Stevens calls out the unique role played by the institutional press, but doesn’t explain why they are different, since they are corporations also. They also are organized to make money; their shareholders also may not agree with all the views they express. Would anyone suggest that the New York Times, or ABC news, or Fox News, has to organize a PAC to promulgate its views?
Stevens expresses the view that somehow, there is a universal understanding that avoids the plain meaning of the legislative enactments (“Everybody knows and expects that media outlets may seek to influence elections in this way.” He writes in note 32). The weakness of such an argument, that “everybody knows” something – whatever it is that everybody is supposed to know – is self-evident.
The torrent of not-nice televised election-related ads and nice communications which are okay
Stevens argues that regulation of campaign finance and its arcane rules can be made simple and easy-to-apply. But unless he makes enormous simplifying assumptions, the argument is hopeless. Stevens concedes as much in a footnote where he assumes the intent of Congress is to target “a virtual torrent of televised election-related ads” (which apparently, are bad – something that ought to be controlled), but Stevens doubted that the FEC would apply the law to ‘nicer’ more socially acceptable forms of election communications, which on the terms of the statute would apply, like a Web site or a book. (Note 31). In Stevens view, the FEC may be trusted to distinguish between nice election communications and mean election communications.
Any Christian conscious of the animosity that may exist within bureaucrats toward evangelical Christians, must object vehemently. If it all depends on what mood the FEC is in, a collection of Washington-based federal bureaucrats, as to when the law is enforced, and when it is not, and against whom, then we have a problem which is not only serious, but entirely predictable in terms of who will wind up being the disfavored group which is penalized by this discretion. Ask Family Research Council; they will tell you against whom discretionary laws will be likely enforced, with severity and strictness to punish them for their views on sexual norms. Go onto any ivy-league college campus (which is where federal bureaucrats are often educated), to explain calmly and rationally why you agree with the Apostle Paul on sexuality and sexual norms – see how that works out. Bring a hardhat.
Do Corporations Have Free Speech Rights? Isn’t there always a human speaker?
As noted above and as all observers have noted, Fortune 500 companies have not presented a dominating interest in spending money on influencing elections since Citizens United. There has been a great deal of money, every growing, funneling into elections, but the sources of it have not been the general treasuries of the Fortune 500.
Christians generally see money for campaign finance and political influence as adhering to individuals, not to organizations. The individuals who control or rule (‘powers and principalities’) such organizations are the speakers. Whatever we are doing or fixing, the individuals need the attention; whatever organizations they control will follow. Discussing whether corporations have free speech rights isn’t helpful, especially when the politically-motivated corporations are not the same set as the corporations constituting the Fortune 500.
Yet another reason to tear down the statue of poor Teddy Roosevelt
Stevens conducts his own historical recapitulation, noting accurately enough that Congress, in enacting the 1907 Tillman Act, hardly thought any discussion necessary to ban the use of corporate money in connection with elections. Stevens cites President Theodore Roosevelt in his 1905 annual message to Congress that “all contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes.” Like Teddy Roosevelt in 1905, Stevens see in corporations an “enormous power” to “wield in federal elections.” Teddy Roosevelt did not consider the vast range of corporate organizations in his day; and Stevens does not consider the much more vast range of such forms of organization in ours.
The highly subjective line between a ‘Public Perception’ and a Conspiracy Theory
Neither Roosevelt or Justice Stevens seems to have any faith that ordinary laws against bribery will work. Indeed, neither seems to reference them particularly at all. Both see a “public perception of corruption” – and for both men, that seems to be enough. Neither men saw the problem inherent in the proposition – ‘if I think you are committing a crime, then you, bad corporation, are committing one.’ Or, ‘if there is a public perception of corruption (measured by persons unknown, to a standard unknown), then corporations – which always means in these discussions that handful of the most massive of corporations – must be guilty of creating that perception.’ It is a model for the regulation of conduct which does not rely on anything other than perceptions in the public’s eye (without any definition of ‘the public’ to assist the analysis), to determine who wields some enormous, pernicious influence over federal elections.
The suspicion that some other group, hidden in back rooms somewhere, secretly “has enormous power to wield” – and hence, must be regulated – is a very common suspicion indeed. The evildoers upon whom such suspicion falls comprise an extraordinarily long list of people, organizations, groups, religious faiths, and ethnic backgrounds. Often, the argument about such things falls along the following semi-intellectual lines: ‘What do you mean, you don’t think that X is doing Y? X does Y all the time. It’s why everything is all fouled up. If you don’t see it, you’re not one of us.’ The lack of actual evidence, attributable to specific actors and acts at specific times and places, is notable, tiresome, and something not to be imitated.
A Lament for the Helpless Shareholder – Only a Pawn in Their Game
Another objection Justice Stevens raises, as Teddy Roosevelt raised, is that the shareholders are having their money used from the general treasury of the corporation to support candidates they oppose, or that money is simply being used to pursue goals in which the shareholders have no interest. It’s not clear why the shareholders in the large public corporations who object to such political involvement lack any avenue to express their opposition. Generally, no one thinks that shareholders in a public corporation are being treated unfairly if a minority of shareholders oppose a merger, an acquisition or a divestiture. The general assumption is that the shareholders have two reasonable options: they can gain the support of other shareholders until they have an effective working majority, or they can sell their shares. That would not be equally true of small or closely held corporations which are not publicly traded; disposing of shares in such corporations often has formidable barriers. But that’s not what Justice Stevens is talking about; he doesn’t think that its small, closely held corporations which are wielding the “enormous power.”
Stevens Connects for a Single with Taft-Hartley
In his dissenting opinion, Justice Stevens references the Taft-Hartley Act of 1947. Also known as the Labor Management Relations Act, it prohibited certain types of strikes such as wildcat strikes and jurisdictional strikes. It prohibited secondary union boycotts. It prohibited monetary donations by unions to federal political campaigns. It also extended the prohibition on corporate support of federal candidates to cover independent expenditures as well. Taft Harley didn’t work to stop corporate contributions and expenditures, but Stevens has his best argument here, and he cites in a footnote a line of cases which fairly illustrate his premise (Note 60).
Stevens notes that this line of cases generally support the principle that corporate and union political speech financed with PAC funds (which are voluntary contributions not drawn from general treasury funds and which are deposited with the independent PAC entity), have generally received greater protection from legislative interference or regulation than such corporate or political advocacy financed with general treasury funds. The point is that if large organizations wanted to swing into action in the political arena with large financial weaponry, they couldn’t use their general funds, accumulated for non-political purposes; they had to form separate organizations to do that, and fund them with genuinely voluntary contributions from only those so engaged and interested. Then Congress would leave them alone.
If Congress had limited the scope of its congressional enactments to publicly traded Fortune 500 companies and Justice Stevens had limited the scope of his argument to those same companies, the argument would have considerably more force. The succession of cases brought by corporate groups like the Michigan Chamber of Commerce, Massachusetts Citizens for Life, Inc., Wisconsin Right to Life, Inc., Citizens United, etc. demonstrated that the appellation “corporation” is too broad to support the reasoning employed by Justice Stevens. None of those nonprofit corporations is a Fortune 500 company.
The Unsurprising Fate of a Truly Well-Funded Litigant
The for-profit bank involved in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) is the closest analogue to a corporate election-finance law litigant which would be in the category of a Fortune 500 company. Ultimately that bank acquired some New England banks, failed in some acquisitions and mergers, managed to merge to regain the title of the largest bank in Boston (that’s it, the largest bank in one particular city of the country), finally merged with its chief competitor Fleet Bank, at which point it really was large, was bought by Bank of America, then had many of its overseas assets sold to a Brazilian bank. Other international transactions occurred. This mighty giant of financial power wound up – wait, you guessed it – substantially consumed by Industrial and Commercial Bank of China, and now no longer exists.
The entire absence of any Fortune 500 company, in any of the cases, is striking, given that so much of the discussion in all of them revolves around the grave risks to the electoral process that these enormous behemoths of financial influence are supposed to pose. The last set of rules never fits the next corporation up. Justice Stevens acknowledges there are some problems in his opinion (after Buckley, corporations and unions figured out how to circumvent the limits on express advocacy). Citizens at 439.
WWCID – What would a Christian Idealist Do?
But in a future, millennial Christian world, there still will be large economic entities, still elections, still differing candidates and viewpoints. Protestants and Catholics may still see things differently; Baptists and Methodists may still view proposed government action through a different lens. Under that set of circumstances, in which we do not rely on rigid statutory structures and rule-making, but express ourselves to engage more voluntary and comprehensive conduct, what guidance would we want to see? Certainly not more laws and rules for a Christian community, but requests and expectations along the following lines, suitable for conduct among those whose Lord is Christ:
We Christians Request: That those organizations or associations which have superior economic power, identify themselves and their interests as they enter the political arena to promote their goals.
We Christians Expect: That the means by which such organizations advise the candidates and the electorate as to their involvement and activities meets the ordinary standards of notice under due process; that is, notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of their actions and afford all engaged parties an opportunity to present their responses.
The Amish have conducted themselves as a religious community for hundreds of years, without the need to bring in policemen, prosecutors or bureaucrats to maintain their social or political traditions. Requests and expectations have the flexibility to meet changing circumstances. To the extent that the players in the political adventure abide by these out of reverence for God, then we have actually advanced toward the City of Peace and Joy. To the extent that they don’t, well, they too will give an accounting and in the meantime, we are no worse off.
Someday, it will be different and better. We will do better with respect to that necessary and desirable political engagement with our brothers and sisters in Christ, with whom we will be in fellowship forever. Spirited discussion is part of fellowship. Better, more flexible and realistic self-government, more tolerant of speech from any quarter, but patiently insistent on asking who is doing the financing for such speech and why, is part of that doing better with each other.
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