I thought that I should have more in depth knowledge of notable Supreme Court decisions rather than merely relying on the filtering of others, but that leaves the problem of all the prior cases cited whose decisions are again filtered through disputing judges. Unlike Wikipedia, the graphs here are directed backward and so logically have endpoints, but most SCOTUS opinions are a lot longer than the average wiki article.

The specific case I’ve been reading is (as you might have guessed) Citizens United (who no longer have “Not Terrified” at the end of their name). I’ve just read through Stevens’ dissent and plan on reading the rest later today. The prior cases I’ve read are Heller & Ricci, and I notice a somewhat disturbing trend in my selections: in none of them do I agree with the dissent. That’s not to say I agree with the majority, but in the main points in dispute between them I generally find the majority more persuasive than the dissent. Just as I gave credit to the dissent where it’s due in Ricci, I’ll do so again here: Stevens point that Citizens United dropped the facial challenge for a more narrow argument resulted in the Government not even arguing it’s case, making it a one-sided case. Or perhaps less than one-sided, since it’s the majority rather than C.U making the argument. On the other hand, Kennedy’s point stands: all judges agree that C.U’s narrow argument fails, so the majority plainly cannot accept it. The court has a duty not to violate the Constitution, so (accepting for argument the majority’s constitutional view) it plainly cannot rule against C.U either. I have heard that the court adopted an obviously wrong statutory interpretation in NAMUDN in order to avoid declaring the Voting Rights Act unconstitutional. I guess I’ll have to read that as well and in the meantime chalk it up to justice Kennedy‘s lack of principle.

To sum up my main disagreement with Stevens, most of his rationales for why the government can restrict the behavior of corporations could apply just as well to a wealthy individual or a media corporation. It is a matter of statutory law that media corporations are exempt, but but he fails to explain why they have first amendment protection. You might object that they are singled out by the word “press”, but as with all the other clauses of that amendment it refers to a behavior rather than an entity exercising it. As I mentioned with Heller, I completely reject any “interest” based reasoning from judges. It is the job of legislatures to take interests into account, it is the job of judges to carry out the law. That brings me to his one argument that does apply differently to a wealthy individual: dissenting shareholders. It is not the job of judges to preemptively prohibit actions on the part of corporations that shareholders MAY disagree with. If actual shareholders disagree (which we may assume would not be the case for a corporation with only one shareholder), there are other mechanisms to handle that problem. If current ones are insufficient (which I think is the case), changes should be made to empower shareholders.

Debates had been going on in various comment sections before I read any of the decision. I argued at most length about the issue in response to Crispin Sartwell. I made shorter comments to John Robb, IOZ and La Rana. I didn’t bother in the original thread at Overcoming Bias because the argument had already gone in all sorts of directions I didn’t feel like engaging in. I’m pretty sure Robin didn’t read the decision, or he’d know that Stevens’ dissent actually makes use of the “right of listeners/hearing” logic. Where that fails is that we are ruled by law rather than intent: everyone in the country could sign a petition saying they had no interest in hearing what Carrot Top has to say about politics, and yet Carrot Top would still have the first amendment right to speak about politics. Similarly, legislators could pass legislation because they assume it won’t actually be enforced, but legally speaking it is still enforceable.

Some other assorted complaints with Stevens logic: Stevens focuses on corporations corrupting our democracy by giving disguised quid pro quo support to a candidate. The Citizens United case it not an example of that, rather it is a group relentlessly attacking a politician they dislike. Imagine that a politician was considering a tax on soda. Coke declines to do anything, while Pepsi sponsors ads attacking that politician. The politician is greatly irritated and after his electoral victory thanks Coke for not following Pepsi’s lead and proposes that legislation be enacted to screw over Pepsi. Coke is being rewarded for not engaging in campaign activity, most would agree it would be absurd to say they are prohibited from doing so. On the other hand, Pepsi is not gaining special favor through ingratiating itself with a poltician, just the opposite. It would be quite perverse for our politicians to say “You cannot be permitted to criticize us, for then we would be biased against you, so we must protect you from yourself”. This helps to clarify why Kennedy ruled earlier that a judge must recuse himself from a case involving a prominent supporter: it is the conduct of our officials that we regulate, not those that support or oppose them. Not all of Stevens decision relies on criticism of corporations. He makes the quite plausible point that some corporations feel compelled to give support to politicians under the veiled threat that they will be punished otherwise. If you’ve watched The Wire, you get the idea. It may indeed be unfortunate for those corporations such behavior occurs, but that is by no means sufficient ground for depriving others of their constitutional rights.

UPDATE: If you don’t care about all this legal constitutional mumbo-jumbo but are a results-oriented legal consequentialist, Eugene Volokh has some data.

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