I haven’t actually tried to read the decision in Citizens United v. FEC—it’s long (looong) and written by the odious Anthony Kennedy, whose pompous arrogance, untempered by Scalia’s savage and entertaining wit or by Thomas’s clarity and brevity, pisses me off—and if I did it’s not like I’d really be a reliable interpreter, not being a lawyer and all. But, well, jeez.
I’m trying to buck up by telling myself that
- This will merely make advertising more honest; corporation already contribute pretty much whatever they want to political campaigns, they just have to weasel through loopholes;
- Political advertising makes less difference than people think, and we’re pretty much saturated as is; and
- Let’s face it, existing restrictions on campaign finance do suppress speech.
But no, I’m not buying any of that either.
From what I’ve read about the decision (from which I may admittedly have drawn wildly inaccurate conclusions, see above) I think the real problem with it is that it doesn’t acknowledge the principal-agent problem. Owners of large corporations—that’s all of us who own stock—do not have any input into those corporations’ political advertising. It’s our agents—the officers and boards—who decide that, and their incentives are wildly different from ours. I certainly don’t want corporations I own stock in to be spending anything at all on political ads, but my wish makes not one whit of difference.
If the world were otherwise ordered, then maybe shareholders would control in some meaningful sense how corporations behave. The fact that such is not the case, and really can’t be, is exactly the sort of real-world inconvenience that Anthony Kennedy can’t be bothered with. How I miss Sandra Day O’Connor.