Tuesday, August 14, 2018

Nader, on Citizens United

Jason Mazzone

At almost every event at which I speak about the Constitution or the Supreme Court to a general audience, somebody will raise a hand and say they strongly oppose the Court's Citizens United ruling. I always respond by asking that person to explain, "for the benefit of the audience," what the Supreme Court decided in Citizens United. Without fail the person (a) does not know what the organization, Citizens United, was and what the government sought to prevent it from doing and (b) wrongly reports that the Supreme Court held in the case that corporations are persons with a right to make unlimited monetary contributions to candidates for political office. I then explain what the case was actually about (a challenge, by an organization seeking ad-supported video-on-demand distribution of a documentary critical of Hillary Clinton, to the provision of the Bipartisan Campaign Reform Act prohibiting corporations and unions from using their general treasury funds to make independent expenditures for electioneering communications). With the facts and holding properly described, I then engage the audience in a conversation about the merits of the decision. I go through this exercise not to call out an unsuspecting audience member but to demonstrate the importance of understanding precisely the facts of a case and the contours of a judicial ruling and the associated dangers of relying on mass-media sound bites that court decisions often generate. Lawyers, of course, should know these things already. But here is how Ralph Nader describes Citizens United in his letter published today in The New York Times (in response to a recent column by ACLU Legal Director David Cole): "Citizens United allows unlimited political contributions by corporations for or against candidates for elective office." Nader surely knows what Citizens United was about. His smarmy phrasing--"political contributions by corporations for or against candidates for elective office"--thus appears designed to reinforce the perception that the case involved corporations giving money to political candidates. It's one thing to alert the public that the Supreme Court has made a mistake. It's another to criticize an error never made.                    

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