2010/10/27

Lingering Citizens United controversy

Lingering controversy on the Citizens United decision is getting arguments for what the law, in this case the Constitution, should be, but not enough about what the Constitution actually says. Some are desperately seeking some power of government to restrict the undue influence of money on election campaigns, citing all kinds of dire consequences if this is not done. I keep waiting for someone to make the argument that "the Constitution is not a suicide pact".

I suggest this forum should focus on what the law "is", rather than on what it "should be". However, there are two legitimate concepts of what the law is. The first is what was originally meant, intended, or understood. The second is what is current custom, policy, practice, or doctrine, even if it conflicts with the first. As a legal historian I favor the first, but it is to be expected that legal realists, focused on winning cases, might favor the second. The problem comes when people seek the exercise of governmental powers that don't fall within the first or second, not by formally amending the Constitution, but by pushing changes in current practice as an alternative to formal amendment.

First, let us dispose of one argument: there is no such thing as a "natural right" to not have private parties spend their money to influence voters. The right is not to have government restrict how anyone may spend his money to do so. That is the right of free press (miscast as "speech"). "Congress shall make no law" means Congress shall make no law. What part of "no law" is unclear?

A more useful discussion would be on the question, "How might we amend the Constitution to delegate the power to restrict the undue influence of money in election campaigns?" Assuming we had any agreement on what constitutes "undue", which we don't, we would need to examine what government agents could do that would be effective in that regard. Imagine an ideal world in which there is no undue influence, and then try to find the actions by agents that could make that so.

I have yet to find any proponents of such restriction that can describe how that could be made to work, short of just picking the winners or abandoning elections altogether and going to some kind of sortition process. As long as voters can be influenced by others and those others can be paid to influence them, money will find a way to influence voters. Overcoming that would take godlike powers and government agents don't have godlike powers (although some might think they do). The system simply does not have leverage points at which interventions can be applied that would not make things even worse.

There are limits not only to what government is authorized to do, but to what it can do even if authorized, and people do not act wisely to try to exceed those limits.

Official power does not come from need. It comes from a delegation of authority from someone having the power to do so. The Universe may end without the exercise of a power, but that does not confer the slightest iota of authority, unless there is a prior delegation of authority to act if a need arises. There is a logical fallacy that covers this: Necesse ergo praesto. I have the need to do it, therefore I have the (legal) authority to do it. No you don't. If you act without authority to save the world, history may praise you, but it may still be lawful and dutiful to prosecute and execute you for it. After you are dead you will get a statue in your honor. That is the way law works, and is supposed to work.

The decision in Citizens United had nothing whatsoever to do with corporate personhood, nor do other statutes or court rulings on the subject of speech and campaign finance. The First Amendment state "Congress shall make no law ... abridging the freedom of speech, or the press ..." No law means no law. It makes no difference whether the speaker or publisher is an individual, a corporation, a genetically enhanced animal, an android, a space alien, or a rock. There is no constitutional power of government to try to restrict any attempt by anyone or anything to persuade anyone of anything. Voters have the absolute responsibility to decide how and by whom they will be influenced, and if they make bad choices, those are their choices to make. They are not children and we are not their parents.

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