Stuart Taylor on the Citizens United case before the Supreme Court

While I always respect Mr. Taylor's arguments, I think that he is wrong this time.

Kagan's main argument was that business spending on campaigns, even when done independently of the candidates, creates the same appearance of indebtedness and quid pro quo corruption that the Court has long held to justify banning direct contributions to candidates from corporations and large (above $2,400) contributions from individuals.

This particular argument has some force but is not entirely persuasive. The reason is that independent election spending by business corporations is not dramatically more corrupting than the independent spending of vast sums by super-rich individuals such as George Soros, which -- the Court has properly held -- the First Amendment protects.

A better argument against unleashing business corporations is that executives motivated solely by their companies' economic interests would be pouring into campaign ads money belonging to individual stockholders who had not consented to the executives' candidate choices and would in many cases disagree with them.

Oil executives, for example, might buy ads praising champions of more offshore drilling. But many of their stockholders no doubt have other political priorities -- such as legislation on health care, abortion, civil rights, drug laws, or education -- that might well lead them to oppose some of the same candidates.

"When corporations use other people's money to electioneer," as Kagan explained, "that is a harm not just to the shareholders themselves but a sort of a broader harm to the public," because it distorts the political process to inject large sums of individuals' money in support of candidates whom they may well oppose. . . .

People can own stock in whatever companies that they want. Presumably the company only takes positions that the majority of its shareholders support. Companies can even adopt bylaws that say a supermajority is needed to take certain actions. But to take the specific example discussed by Mr. Taylor, there are funds that only own stock in environmentally "responsible" companies (whatever they define that to be). If shareholders hold stock in companies that do this advocacy despite the shareholders opposing that position, it simply says that they don't hold that position very strongly.

It seems to me that the suggested rules that the Supreme Court should follow are very arbitrary. Shareholders themselves have a better notion of what is in their interest, and if actions that are not in their interest are occurring, they can take actions so that their money is not used to fund positions that they don't approve of.



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