Sunday, July 3, 2016

Citizens United: A Brief Religious Response

The Text -

Our text  is the 5th Principle: We affirm and promote the right of conscience and the use of the democratic process within our congregation and in society at large

Chalice Lighting:

Capitalism as an organizing social structure provides incentives for profit rather than community, wealth rather than wisdom and commerce rather than compassion. Let us be a voice of community values.


Readings -

Free and fair elections, as well as honest representation, are essential to self- determination and self-governance as described in The Declaration of Independence and established in The Constitution of the United States. The American people have lost faith in the political process because their voices are not heard and their interests are not represented. Thus, an ever smaller percentage of Americans is motivated to vote.
Initiative 735
Any activity pursued in behalf of an ideal end against obstacles and in spite of threats of personal loss because of conviction of its general and enduring value is religious in quality

.….It is this active relation between ideal and actual to which I would give the name “God.” John Dewey

Sermon:   Citizens United a Brief Religious Response

Tomorrow is Independence Day. I understand the economic and political reasons behind the Declaration of Independence are actually more complex than that presented in High School, but certainly the desire for self-governance was an important factor. I wanted to offer a Sunday talk in-line with this theme.

The United States Supreme Court case of Citizens United v. The Federal Election Commission, decided January 21, 2010, was controversial when it was handed down and the tumult has continued to foment. There are 17 states which have gone on record as supporting a constitutional amendment designed to nullify the court’s ruling. In Washington the WaAmend sponsored Initiative No. 735 would add our state to this growing list of states eager for change.

What’s it all about? Citizens United is a non-profit corporation seeking to reassert the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security. They have directors spread out across the country, but their treasurer, Kirby Wilbur, is a resident of Duval Washington. Their current project is a suit to obtain emails between Chelsea Clinton and donors to the Clinton Foundation as part of a fishing expedition, looking for evidence of influence peddling.

In 2008, just before the Democratic Primaries, Citizens United released a video titled “Hillary: The Movie.” They were prepared to offer it free through an on-demand channel. The video was highly critical of Hillary Clinton.

The Citizens United plan ran into the Bipartisan Campaign Reform Act of 2002 which prohibited corporations from using its general funds to promote or attack a candidate for office within 30 days of a primary election. Not only did the act prohibit the conduct, but it prescribed criminal sanctions for a violation.(1)

Citizen’s United brought a suit seeking an injunction against enforcement of the act by the Federal Elections Commission. Based on the prior case of Austin v. The Michigan Chamber of Commerce, 494 US 652, decided in 1990, the District Court denied the injunction and ruled in favor of the FEC in a short-cut process known as summary judgment. Citizen’s United appealed to the Supreme Court and the Supreme Court issued its controversial decision.

The Supreme Court, reversed the ruling the court below and held in favor of Citizen’s United. By deciding the case in favor of Citizen’s United the Supreme Court had to overrule its prior ruling in Austin. In Austin the Supreme Court, in a decision authored by the late Justice Thurgood Marshall, held that a state statute banning corporations from using its general funds to advocate for or against a particular candidate was constitutional. Justice Marshall understood that the constitutional right of Free Speech was at stake, even though the speech was corporate speech. The First Amendment does not necessarily prohibit the government from regulating or even banning specific types of speech, so long as the government can show a compelling interest that justifies the governmental restriction. It is a relative judgment or balancing test. A more significant restriction on speech requires a more important governmental interest to comply with the constitutional right.

The compelling state interest which Justice Marshall relied upon in his ruling in Austin was the distortion of the electoral process by the injection of corporate money. He said of this distortion, and I quote, "[It is a] different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas."

Justice Kennedy wrote a dissenting opinion in Austin. Justice Scalia joined in his dissent. When we come to Citizen’s United, the composition of the court has changed, the tables are turned and Justice Kennedy wrote the majority opinion.

The majority opinion in Citizen’s United touches on some issues such as the whether the court was bound by the precedence of Austin, whether the case could be decided on narrower grounds than invalidating the legislation and whether the unconstitutionality of the statue was properly before the court, but those issues are largely irrelevant to the points I would like to make and I am moving on.

Once the court dispensed with the preliminary questions it stuck down the Bipartisan Campaign Reform Act of 2002 and decided that Citizens United had a constitutional right to offer their video to the public as a protected act of political free speech. The ruling in Austin was based upon the rationale that the government had a compelling interest in avoiding the distortion of the electoral process when huge amounts of money were poured into the system by corporations. The majority of the court this time held that the concern of distortion was insufficient to justify a ban on political speech and Austin was wrong to hold otherwise.(2)

Justice Kennedy reasoned that the government cannot stand in the middle of a political debate and assure that there is an equal amount of money both for and against every candidate. Not only would the micromanagement of money in politics be onerous for the FEC, but it is not the place of the Federal Government. Presumably, some candidates will receive more backing than other candidates; that’s how politics works. And, while Justice Kennedy has a point, there is a whole range of possibilities between the intrusive regulation of political expenditures and more modest strategic limitations.

The dissent in Citizen’s United, written by Justice Steven’s and joined by Justices Sotomayor, Ginsberg and Breyer raises two other basis which they claim should count as a compelling governmental interest for regulating corporate speech.

First, they claim that it is unreasonable to expect that all shareholders of a corporation will agree with political expenditures and that when a corporation speaks in a political forum the rights of minority shareholders are violated. Justice Kennedy dismisses this governmental interest. He points out that shareholders have internal corporate rights based upon bylaws and the court should not interfere.

Justice Stevens in the dissent also laid out a plethora of evidence showing that corporations both sought and received access, if not political favors in return for large donations. The appearance of fairness, if not actual corruption should justify restrictions on corporate political speech he reasoned. Not so, says Justice Kennedy. The majority ruled that if there is corruption, it can be dealt with when it happens, but the possibility of a political quid pro quo cannot justify banning an entire class of speech.

In short, none of the concerns raised by the FEC or the dissenting justices were accepted as adequate by the majority of the court. They exhibited a stubborn partisanship in their approach to the facts. The court ruled that an attempt to bar corporate political speech in this case was unconstitutional.

At the 2011 UU General Assembly in Charlotte, North Carolina the delegates adopted an Action of Immediate Witness calling for a constitutional amendment that would, in effect, nullify the court’s ruling. The UU statement claims that Citizens United equated speech with money and “enshrined corporations as persons” in an “unprecedented ruling.” The language of WaAmend repeats these points.

However, treating corporations as persons and money as speech is not unprecedented. There is a long line of cases doing both. If fact these features of the ruling were not controversial among the judges. “Person” is a technical term in the law referring to entities with agency. People are referred to as natural persons, while corporations are artificial persons. Thus, when there is a law which states, “No person shall commit fraud,” both people and corporations are covered by the restriction.

The equivocation between money and speech has, under the right conditions, been given support by both liberal and conservative judges. This view recognizes that the freedom to speak is meaningless unless a person is also allowed the means to speak.

There are disturbing consequences that may arise from denying the ability of corporations to speak or from any person the right to fund political speech. Almost all of the broadcast and print media is controlled by corporations. You may think that censorship of the press is unlikely, but in Pennsylvania, Florida and North Carolina the Governors have censored agencies from discussing climate change and other anti-fossil fuel positions. If they had the legal ability, censorship of the press is just a small-step away.

Proponents of WaAmend say that the initiative would not interfere with Freedom of the Press. But in this day of YouTube, WebLogs and on-line magazines, what counts as the “Press” is a murky question. Citizens United no doubt thought they were sponsoring political journalism.

When it comes to treating corporate speech as protected by the First Amendment, the concurrence of Justice Scalia makes a serious point when he says that he is not recognizing the First Amendment right of corporations to speak, but the First Amendment right of Americans to speak through a corporate form. The rising threat of inequality and the emergence of an oligarchic class is real, but one of the defenses which the middle class has to counter the speech of the very rich is the ability to form a jointly funded group to speak collectively, e.g. as a corporation. I am surprised how willing people are to prune back our First Amendment rights.

I hope it is somewhat clear that both the UU Action for Immediate Witness and I-735 present some troubling reactions to Citizens United and both miss the important legal question presented by the ruling. The fulcrum of the decision was what counts as a sufficient governmental interest to justify the regulation of political speech.

Actually, I believe that most discussions of Citizens United swirl around but fail to reach the most troubling feature of contemporary American Politics. There seem to be powerful forces at work in the electoral process. When confronted with these forces we feel manipulated and excluded from the sacred act of self-governance. When we look around trying to identify those forces which we intuitively sense are in control, I believe we can mistakenly identify those forces as money or corporations. But, if we are wrong to demonize money or corporations then what, you may ask, is the powerful force which puts our electoral process at risk?

That force, in my opinion, is your own subconscious. Let me attempt to justify this claim. Imagine, if you will, that corporations poured in huge amounts of money during elections, but that money went to provide fair and balanced information that was helpful in making an informed decisions. If that was the case, then I don’t think anyone would care about Citizens United. This little thought experiment shows, I believe, that what is really troubling is the content of political discourse and the way we make political decisions. Both Justice Kennedy in Citizens United and the UU Action statement use the unfortunate metaphor of a free “marketplace” of political ideas. But the notion of ideas in a “marketplace” already assumes that political values are just another commodity.

Antonio Damasio, a professor of neurobiology, in a series of books starting with Descartes’ Error demonstrates that our emotions, often subconsciously, drive our decision-making process. I have read three of his books and am skeptical of the whole idea of “rationality.” Both Damasio and Clotaire Rapaille, French, Ph.D. in Social Psychology and marketing consultant have correlated decision-making and brain structures. They contend that certain emotions such as fear, anger, disgust and surprise evolved early and are processed in the reptilian brain. Emotional states dealing with community buildings such as compassion, nurturance, empathy and love evolved much later and are processed in the mammalian brain. Emotional processing is pre-verbal and pre-rational. The language of emotions is pictures.

Sophisticated marketing operates with this understanding whether selling clothing or candidates. Political strategists attempt to trigger an emotional response which makes one candidate more attractive or another less attractive at a “gut” level. If I ask you to imagine a political advertisement, you are likely to picture an image of a candidate that begins in color and turns to black and white (i.e. it spoils), then the figure freezes in an unattractive facial expression and red text scrolls onto the scene announcing that the person has voted 26 times to cut benefits to disabled veterans or something. These messages are designed to hold a person up to ridicule and contempt which are variations of the primitive emotion of disgust.

Millions and millions of dollars go into attack ads because they are effective. I do not believe a constitutional amendment can address this kind of assault on our emotional subconscious.(4) I believe that as citizens we should demand that political campaigns address our higher emotions, by which I mean our social emotions or community building values which are literally processed in a brain structure higher than our primitive emotions. If campaigns were focused on the shape of the community the candidates are trying to create and the values represented by their priorities, then we could be progressing toward our ideally valued world, as described by John Dewey.

My prescription is difficult. The primitive emotions are processed faster than the higher emotions. Fear and disgust tend to short-cut and preempt the fruition of community building. Damasio says that the non-conscious grip of primitive emotions “can be opposed only by a well-trained and powerful counterforce. Spinoza seems to have the right idea when he said that an emotion with negative consequences could be countered only by another, more powerful emotion.” It is a struggle that requires vision and vigilance.

As Unitarian Universalists we are asked to participate in democratic self-governance. We are asked to incorporate our values into that process. While I am not suggesting we should avoid critical discernment, as citizens of the nation and of the world we are better served by focusing on our highest aspirations. As this election cycle inevitably turns ever more negative, Let us stand together on the side of love and the values we have enshrined: Dignity, Justice, Equity, Truth, Freedom, Peace and Compassion. Let us work to redirect our energy from primitive emotionality to a vision of the community we would build.

Mike Mallory

1. When a regulation of speech provides for criminal sanctions the court takes the “chilling” effect on speech into account when judging the constitutionality.

2. The act only banned a corporation from using its general treasury from the specific political speech. The act did not ban a corporation from forming a Political Action Committee from praising or attacking a candidate. Therefore the dissent thought that the characterization of the act’s effect as a “ban” was an exaggeration.

3. A YouTube presentation of Dr. Rapaille is found here:

4 .David Cole, in the Atlantic Monthly Magazine offers a judicial strategy for changing the Court’s ruling. The article contains the fascinating history of the NRA’s efforts to expand 2nd Amendment Rights to individual gun owners.


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