Did Citizen's United Make A Difference?

[JoeTheJuggler]

The sought-after commodity here is the prime broadcasting spot -- and if there were an infinite number of them, they wouldn't be so expensive.

No. That's just as wrong as the claim that "freedom of the press" entitles me to a press as good as anyone else's press. That's not what the First Amendment freedom guarantees.

Put it this way, freedom of speech is not a guarantee that you will be heard. That's up to you.

And since broadcast TV and radio probably represents only a smallish portion of political ads nowadays, the fact is, advertising slots are essentially unlimited anyway.

But that's irrelevant. Even back in the days when all TV was broadcast, and the bandwidth set limits as to how many viable TV stations any given market could have (as opposed to the market itself making that determination), the First Amendment didn't guarantee each person the right to an equal slice of that limited air time.

Again, free speech is not a zero sum thing. Your exercise of the right to free speech is not a restriction on my right to free speech. [ETA: And that's another point that is almost a basic axiom for liberalism: preventing the restriction of civil rights on any particular group benefits all of us, not just the group in question.]

 

[JoeTheJuggler]

Citizens United were not trying to buy prime broadcasting spots. Yet their speech was still prohibited.

I'd forgotten that. They were trying to make the movie available on a pay-per-view type of service except that Citzens United would pay the fees so that any particular user could download and watch it for free. Part of the court's consideration as to whether or not that particular section of McCain-Feingold applied was whether or not they could construe this as a mass audience (greater than some number--50,000 maybe?). They did.

 

[Dymanic]

It's not that commercial product ads are prohibited from making any false claims about their product, but only certain things.

I don't see that as a very direct answer to the question I asked.

If people are so stupid that we can't trust them to deal with free speech, the entire American experiment is doomed.

Shall we take a look at the numbers of people in the US who reject evolutionary theory in favor of the notion that the universe was created around six thousand years ago? Who believe in Bigfoot, or UFOs, or ESP? Is it not a central premise of the skeptical community as a whole that many of the beliefs embraced by so many without evidence are not merely silly, but potentially dangerous?

And since broadcast TV and radio probably represents only a smallish portion of political ads nowadays, the fact is, advertising slots are essentially unlimited anyway.

Your careful use of escape clauses like "probably" and "smallish" appears to have been prudent:

Television continues to dominate the media usage habits of Americans, topping the Internet, magazines, newspapers, and radio on a number of important measures, according to new results of a Knowledge Networks survey commissioned by TVB."

“These results reaffirm the findings of other studies, such as the Council for Research Excellence’s Video and Consumer Mapping Study as well as Nielsen’s Three Screen Report,” said Susan Cuccinello, SVP – Research, TVB. “By every measure, television reaches more consumers every day than newspapers, magazines, radio, the internet and mobile media, and more time is spent with television. Television also delivers impactful advertising and also connects with consumers through strong news performance.“

http://rbr.com/study-television-still-dominates-americans-media-usage/

Even back in the days when all TV was broadcast, and the bandwidth set limits as to how many viable TV stations any given market could have (as opposed to the market itself making that determination), the First Amendment didn't guarantee each person the right to an equal slice of that limited air time.

It would be quite remarkable if a document written in the 1700s did make any mention of such things. We're talking about interpretations here. If only one correct interpretation were possible, we would not be having this discussion at all. And I still say that prime broadcast slots are a distinctly finite commodity.

 

[Dymanic]

Citizens United were not trying to buy prime broadcasting spots. Yet their speech was still prohibited.

Would it come as a surprise to you to learn that the Supreme Court often finds itself obliged to consider how its rulings may affect parties other than those directly involved in the actual case on which they are ruling?

 

[Ziggurat]

Would it come as a surprise to you to learn that the Supreme Court often finds itself obliged to consider how its rulings may affect parties other than those directly involved in the actual case on which they are ruling?

Not at all. Yet strangely, you keep wanting them to have considered only certain cases which were not directly before the court, thus ignoring the actual case before the court as well as other cases you're ignoring. As the justices themselves pointed out during oral arguments, McCain-Feingold could be applied to ban books. Are you seriously OK with that?

I'm afraid the only person here who isn't considering the full breadth of consequences of the law is you.

 

[dc1971]

But Citizens United has no impact on campaign advertising by candidates.

Did anyone say they did?

 

[Ziggurat]

Did anyone say they did?

Dymanic used an example of a candidate's advertisement to justify his position that non-candidate political speech should be silenced. While he didn't explicitly claim that Citizens United had an impact on the advertisement in question, his argument falls apart when one notes that it doesn't.

 

[Dymanic]

Not at all. Yet strangely, you keep wanting them to have considered only certain cases which were not directly before the court

I don't recall making any such arguments.

As the justices themselves pointed out during oral arguments, McCain-Feingold could be applied to ban books. Are you seriously OK with that?

Kagan argued:

It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media. And we took what the Court -- what the Court's -- the Court's own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government's view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context. And I should say that the FEC has never applied 441b in that context. So for 60 years a book has never been at issue.

Keeping in mind that the speechspending we're talking about is limited to a period within 30 days of a primary or 60 days of a general election, it's not surprising that the issue has not arisen. There are certain practical reasons why full-length books are not likely to be an effective means of conveying a message during the heat of our fast-paced political campaign process. Write a book to refute the dishonest Romney ad I mentioned, and by the time it's printed and circulated, the crowd's attention will have moved on to other matters, even in the unlikely event that there still remains enough time before voting day for more than a handful to read it.

Dymanic used an example of a candidate's advertisement to justify his position that non-candidate political speech should be silenced.

It was a counterargument against a specific assertion: "By the time we're grown ups, we should all have pretty strong marketing filters in place".

 

[JoeTheJuggler]

I don't see that as a very direct answer to the question I asked.

Your question included a false assumption (that commercial advertisers are prohibited from making false claims). I pointed out that they're only prohibited from making some false claims, and I pointed you to a fine essay on factcheck.org that addresses the broader question of prohibiting lies in political ads.

I would add to that answer another point: it's rarely possible to separate a lie from something that is technically true. For example, Jim Talent ran an ad here once that said he voted to increase the minimum wage x number of times. Technically it was correct, but only because he voted for some larger piece of legislation that included a minimum wage increase (not all of which passed into law). In fact, if his claim were that Jim Talent is in favor of increasing the minimum wage, that would be a lie. Yet that's what the ad implied. If you crafted a law, how could you go about distinguishing lies from false implication or spin?

[ETA: The factcheck essay makes this point too. In states that have tried anti-lying laws for political ads, they seem to be ineffective. They're way too easy to get around in ways like the example I gave.]

Shall we take a look at the numbers of people in the US who reject evolutionary theory in favor of the notion that the universe was created around six thousand years ago? Who believe in Bigfoot, or UFOs, or ESP? Is it not a central premise of the skeptical community as a whole that many of the beliefs embraced by so many without evidence are not merely silly, but potentially dangerous?

These questions are irrelevant. Should we restrict the speech of any of these people or organizations?

Your careful use of escape clauses like "probably" and "smallish" appears to have been prudent:

I think you're unaware of the difference between the word "television" and "broadcast". Most TV today is not broadcast television. (I'm one of the throwbacks who still gets his TV from the broadcast signals. Most people get it from a cable or satellite dish, neither of which is broadcast TV.)

We're talking about interpretations here. If only one correct interpretation were possible, we would not be having this discussion at all. And I still say that prime broadcast slots are a distinctly finite commodity.

I think you're wrong. The fact that people can disagree about the interpretation of the law is a good rationale for establishing a judicial authority.

At any rate, free speech is not a finite commodity, and one person's exercise of it does not restrict another's. You're just wrong in thinking about it that way. If so, each person would be able to demand an equal allotment of that commodity (including, I suppose equal space in newspapers, equal air time on TV and radio, etc.) And again, then freedom of the press could only be construed as each person having a right to a printing press that is no better or worse than that of any other person.

But that's not how rights work. Rather, the right to free speech is a restriction on the authority of government.* When the constitution had been drafted, the bill of rights didn't exist, and there was some controversy over whether they were necessary or actually a danger. The idea was that the constitution describes a limited government, and that implies all the rights of the people. (In other words, rights are very much equal to limits on government.) When the list of rights was added to get the constitution ratified, it had to include the 9th amendment which makes this point clear (this enumeration of rights isn't the whole story--government is still limited and all other rights are still reserved).

*And that really is the question the Citizens United case brought to the Supreme Court--does Congress have the authority to restrict speech in this way.

FWIW, Citizens United doesn't stand alone as a quirky landmark case as many think. The McCain Feingold Act was the subject of 4 or 5 other Supreme Court cases, and in only one of them were all the parts of the law being challenged sustained.

 

[JoeTheJuggler]

Kagan argued:

Keeping in mind that the speechspending we're talking about is limited to a period within 30 days of a primary or 60 days of a general election, it's not surprising that the issue has not arisen.

The applicable part of McCain Feingold was about electioneering that is "publicly distributed" which was defined as that which "[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.”

[ETA: And one of Citizen United's arguments in the alternative was that their way of showing the Hillary movie didn't comprise public distribution:

Citizens United, however, argues that Hillary was not “publicly distributed,” because a single video-on-demand transmission is sent only to a requesting cable converter box and each separate transmission, in most instances, will be seen by just one household—not 50,000 or more persons.

But the court rejected that argument reasoning that the cable service had 34.5 million subscribers so it was available to well over 50,000 persons.]

It was not limited to broadcast, and the case before them itself wasn't about something being broadcast.

Even so, your approach to speech acts as being somehow a zero sum thing such that restricting one person's free speech rights can somehow improve another person's free speech rights is definitely NOT the reasoning of the court. And I doubt anyone asserted it on either side. It's simply not how freedom of speech works.

 

[Kestrel]

The nasty part about citizens united is that the people funding the advertisements can do so without disclosure. Individuals and corporations were able to spend millions of dollars on a smear and lie campaigns without risk to their reputation. Requiring disclosure would go a long way toward toning down this crap.

 

[Dymanic]

Your question included a false assumption (that commercial advertisers are prohibited from making false claims). I pointed out that they're only prohibited from making some false claims,

My assumption never was that advertisers are prohibited from making any false claims; by providing examples of some claims they are prohibited from making, you were supporting my argument. Now that we've established that commercial advertisers are in fact prohibited from making some false claims, what is the basis for the authority behind those prohibitions?

and I pointed you to a fine essay on factcheck.org that addresses the broader question of prohibiting lies in political ads

In other words, you tried to bust the parameters of the argument I was making by shifting the frame back to political advertising. I just thought it might be interesting to see what we might learn by considering them separately.

These questions are irrelevant.

Irrelevant to the matter of whether the entire American experiment is doomed because people are too stupid to deal with free speech? Maybe I would have been better off just answering your question directly. I don't think it's about intelligence. Our electorate is made up of people who are, taken as a whole, of approximately average intelligence (go figure). I think Bill Moyers nailed it when he said, "A people made morbidly obese in mind and spirit by the junk food of propaganda is less inclined to put up a fight, ask questions and be skeptical". I believe this accurately describes the nature of the problem we're facing. In 2007, Al Gore wrote an entire book on it: The Assault on Reason, in which he made what I find to be some very strong arguments that could be used to support the proposition that the survival of the entire American experiment is placed very much at risk by the changed nature of the way political dialogue (or what passes for that) now takes place.

Should we restrict the speech of any of these people or organizations?

The question in CU v FEC boiled down to one of whether the government has a compelling interest in preventing corruption or the appearance of corruption in elections.

I think you're unaware of the difference between the word "television" and "broadcast". Most TV today is not broadcast television. (I'm one of the throwbacks who still gets his TV from the broadcast signals. Most people get it from a cable or satellite dish, neither of which is broadcast TV.)

I'm one of those überthrowbacks who don't watch TV at all. Swore it off completely about ten years ago. So it's possible that you might know more about those details than I would. But I think you're splitting hairs on this. That such a thing as a "prime broadcast spot" exists may be determined by comparing the per-minute cost of advertising of various slots.

Even so, your approach to speech acts as a being somehow zero sum such that restricting one person's free speech rights can somehow improve another person's free speech rights is definitely NOT the reasoning of the court. And I doubt anyone asserted it on either side.

Opinion of Stevens, J.:
"Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or no correlation” to the ideas of natural persons or to any broader notion of the public good, 494 U. S., at 660. The opinions of real people may be marginalized."
http://www.law.cornell.edu/supct/html/08-205.ZX.html

 

[WildCat]

The nasty part about citizens united is that the people funding the advertisements can do so without disclosure. Individuals and corporations were able to spend millions of dollars on a smear and lie campaigns without risk to their reputation. Requiring disclosure would go a long way toward toning down this crap.

Nothing about the Citizerns United decision prohibits disclosure. In fact they hinted that would be acceptable to the court.

 

[JoeTheJuggler]

The nasty part about citizens united is that the people funding the advertisements can do so without disclosure.

That's not factually true. The court upheld the disclosure portion of the law being challenged, and hinted that even stronger disclosure laws were possible.

The Citizens United decision did nothing at all to weaken disclosure.

 

[JoeTheJuggler]

Just to advance the discussion a bit. . .

A friend of mine suggested rather than the Move to Amend sort of amendment to resolve the problem of money in elections, what about an amendment that would double the length of terms of the President and Senators and Representatives, but limit them all to one single term. (Then no re-election campaigning at all, and at least you completely remove the issue of effective bribery.)

Personally, I don't think it would take money out of elections anyway, and such a grand sweeping change would likely have completely unforeseen unintended consequences. Anyway, part of the argument against the Move to Amend efforts applies here too: such an amendment stands very nearly 0% chance of being ratified.

 

[Kestrel]

Nothing about the Citizerns United decision prohibits disclosure. In fact they hinted that would be acceptable to the court.

Yes, I am aware of that fact. Just pointing out something that would help without amending the Constitution or replacing the current Supreme Court.

Republican members of Congress have torpedoed all attempts to require disclosure. Probably because most of the funds enabled by Citizens United have gone to attack ads against Democrats. What disclosure laws do exist are being avoided by laundering funds through shell organizations.

 

[JoeTheJuggler]

Yes, I am aware of that fact. Just pointing out something that would help without amending the Constitution or replacing the current Supreme Court.

Republican members of Congress have torpedoed all attempts to require disclosure.

Oh I agree-- the Disclosure Act or something like it is the way to go. And it's much more feasible to pass it than a Constitutional amendment anyway.

Also, for those who think disclosure makes no difference, I would point out that a lot of the money did run away from entities that required disclosure and toward those that didn't. And one of Karl Rove's SuperPACs will undoubtedly lose a lawsuit over that issue. (But of course disclosing donors after the election is an ineffective remedy to any effect it might have had on the elections. Justice delayed. . .)

In other words, if tighter disclosure laws don't matter, why the opposition?

And the court already said it doesn't buy that the mere possibility of retaliation means that disclosure laws conflict with the First Amendment because of their purported chilling effect. So what other argument is there against it? The First Amendment does not guarantee anonymity.

 

[Cain]

Here's a post-election bloggingheads segment discussing campaign finance by two scholars: http://bloggingheads.tv/videos/12538

Informative, but I haven't listened to the whole thing yet (make sure to set it to 1.4x so it goes faster.)

 

[magellan]

Oh I agree-- the Disclosure Act or something like it is the way to go. And it's much more feasible to pass it than a Constitutional amendment anyway.

Also, for those who think disclosure makes no difference, I would point out that a lot of the money did run away from entities that required disclosure and toward those that didn't. And one of Karl Rove's SuperPACs will undoubtedly lose a lawsuit over that issue. (But of course disclosing donors after the election is an ineffective remedy to any effect it might have had on the elections. Justice delayed. . .)

In other words, if tighter disclosure laws don't matter, why the opposition?

And the court already said it doesn't buy that the mere possibility of retaliation means that disclosure laws conflict with the First Amendment because of their purported chilling effect. So what other argument is there against it? The First Amendment does not guarantee anonymity.

Because that retaliation might take the form of boycotts, and therfore mean real loss of dollars and not just some high-minded constitutional gobbeldygook?

 

[Ziggurat]

I don't recall making any such arguments.

You keep talking about the specific case of large for-profit corporations overwhelming broadcast TV spots with paid advertisements. And yet that's only part of what the law was about, only part of what the decision affects, and nothing of what the case before the court was about.

Kagan argued:

Thoroughly unimpressive reasoning. The first amendment makes no such distinctions between different mediums of speech, the law makes no such distinction, and she herself doesn't offer an actual distinction, only hand-waves an assertion that it exists. Her basic argument is that people wouldn't do that, but that's simply not good enough. Kagan is wrong.

There are certain practical reasons why full-length books are not likely to be an effective means of conveying a message during the heat of our fast-paced political campaign process.

The law grants the power to censor books. "likely" doesn't matter: either that's constitutionally prohibited, or it's not.

It was a counterargument against a specific assertion: "By the time we're grown ups, we should all have pretty strong marketing filters in place".

And yet it still showed that your preferred solution is not a solution at all. Why you made the argument is pretty irrelevant next to that.