David Kairys’ Embarrassingly Wasteful Take on Citizens United, and Why It Might Ulimately Be Right

by Bryan

As of this writing the top-emailed article on Slate.com is David Kairys’ “Money Isn’t Speech and Corporations Aren’t People,” a anti-Supreme Court invective that, while passionate, falls somewhere on the unhappy end of the “Sloppy Reasoning Or Intellectual Dishonesty?” scale. Look: I wanted to believe Citizens United vs. FEC is unconstitutional, and I have my own theory as to why it might be, which I’ll get to after I sort through Kairys’ baffling analysis. Kairys believes the Supreme Court made the wrong decision, and he peppers the article with slightly-altered versions of his thesis, which is based more on how he feels about the law than the law itself, and offers nothing in the terms of an actual remedy. To begin:

The court has also employed theories not uniformly but, rather, as constitutional cover for dominance of the electoral system by corporations and by the wealthy.[…]

Increasing the constitutional rights of corporations beyond their business purposes is really about increasing the rights and power of corporate managers.[…]

At its core, this line of cases is about dominance of the political and electoral system by wealthy people and corporations and about legitimizing a political and electoral system that is unrepresentative, money-driven, corrupt, outmoded, and dysfunctional.

First of all, criticizing the Court for using a “constitutional cover” on its decision is like criticizing the David Ortiz for using a bat to hit home runs. Second, at no point does he say why the Court of the United States has a vested interest in seeing wealthy people dominate the electoral process. This is an important oversight, to put it mildly. Maybe for him it’s so blindingly obvious that, since the decision fell along the Court’s Democratic/Republican fault line, the Justices who were appointed by Republicans are so beholden to the party that they’d undermine the Constitution to please it, and that this is so obvious that all his readers will just pick it up on a whim. Maybe his coffee guy told him. I don’t know, because he never explains it. There’s nothing like, “The Justices would obviously favor that the wealthy control the electoral process because…” anywhere. I wish Slate’s editors had noticed this pesky little lack of an argument. It’s a shame, because I’m genuinely curious as to why the Justices want to strip the Five Dollar Footlong crowd of its electoral power.

Unfortunately, we’re just getting started with the inanity. Kairys attempts to draw parallels to other free speech cases and demonstrate inconsistency in the Court’s decisions, especially related to the concept of “money as speech,” and pretty plainly fails, if you’re paying attention. The opening line to the article is:

Go back almost a century, to the time when the modern corporation was created, and you’ll find laws that prohibit or limit the use of corporate money in elections.

That’s great, but as you’re about to spend the next 1,000+ words telling me why a law was wrong, you should probably tell me why the previous ones were right. Not planning on it? That’s interesting, because it almost sounds as if you’re saying that if laws are in place they must be right. That would be strange because, as a law professor, you obviously believe that the law can and should be refined. If you expect me to take that sentence as a jumping-off point for what follows, every court case would be done before it ever started. It would go something like:

ATTORNEY: “Your honor, there used to be laws against this, but there aren’t anymore.”

JUDGE: “Oh, there used to be laws against it? That ends that. Let’s play nine.”

Things get sloppier still (really) when he draws a parallel to another “money-as-speech” Court decision that, in his words, “limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports.” The Court ruled that the soliciting was “disruptive” and an “inconvenience,” leading Kairys to conclude, “some people’s money is speech; others’ money is annoying. And the conservative justices have raised no objection to other limits on the quantity of speech, such as limits of the number of picketers.” And later on:

We limit speech—when it has nothing to do with wealthy people spending money—in many ways. (It wasn’t protected at all until the mid-1930s.) You famously can’t shout fire in a theater. You not-so-famously can’t break the theater’s rules, including rules about speaking, because you don’t really have any First Amendment rights in a privately owned theater or at work.

Where to begin? As Moacir wrote to me, “The story here is that Justices are inconsistent. Duh. But ‘some speech is prohibited, so we can prohibit more’ is a bad angle.” You think? If the Court had ruled the opposite way, there would still be major inconsistencies… but as a reader, they’re only supposed to  bother you into buying Kairys’ thesis that the Court wants the wealthy to control elections. Just know that if the tables had been turned, a conservative law professor would have used the exact same argument, and that’ll tell you how much it’s worth. Would it be too much to ask for an argument that has to do with what we’re specifically talking about?

Apparently yes, because next we tackle the Hare Krishna case. The one about the people soliciting money for their cause. Wait—soliciting money? I thought Citizens United was eventually expanded to control how money was donated. No one was prevented from giving money to the Hare Krishnas. This doesn’t add up. The details of the cases are very obviously inverted, but there’s no mention of it. To me, it’s sloppy and likely erroneous legal reasoning (that is, if he’s as careless in selecting cases as he is at making an argument, I see no reason to trust that he’s choosing the best test case here). I see no connection, but he sees an obvious one. I’m the reader; this is his fault, no matter how obvious it looks to him. Then again, a lot of things seem obvious enough to him to avoid explanation. To wit (emphasis mine):

Corporations needed some rights usually reserved for people to function as legal entities, so that they could, for instance, make enforceable contracts and sue or be sued. But despite the common cultural personification of corporations—we can easily say “GM was embarrassed today”—they obviously don’t and shouldn’t have all the rights of people. For example, they don’t have the right to vote.[…]

Wealthy people and corporate managers shouldn’t dominate politics or have more and better speech rights than the rest of us. That seems like an obvious truth. And yet the Supreme Court’s recent decisions move us away from it.

Let’s take these “obvious” observations one by one. One, if corporations “obviously” shouldn’t have all the rights of people, there would be no need for this article. The Supreme Court doesn’t think this is “obvious,” which is kind of what we’re talking about. Two, the “obvious truth” that wealthy people and corporate managers shouldn’t have outsized influence doesn’t directly tackle the constitutionality of the decision. The wealth of the individuals and corporate managers is circumstantial, not pre-conditionary. Kairys shoud know that it wouldn’t make a bit of difference to the Court if a corporation was planning to donate $1 or $1 million to an election campaign; it’s the free speech principle that matters to the Court, and yet he paints it terms of the imbalance that’s created. I’m not any happier about it than he is, but while the imbalance is obvious to him, it’s just as obvious that the Court doesn’t give a crap. But while Kairys may be shortsighted, it doesn’t mean he’s ultimately wrong. This decision feels wrong to so many liberals, and for good reason: There may be angles yet to challenge it, even if Kairys doesn’t come close to approaching them here. Maybe he’s planning to write a book for the thousands of Slate readers that have forwarded his article along, unaware that they’re passing along a rice cake.

Let me reiterate: I’m not a law scholar, and I wouldn’t propose a counter-claim to the Supreme Court if I hadn’t just read one that insulted my intelligence. But I did, and I will. Corporations are necessary made up of people. As Kairys said, corporations cannot vote, but people can. People can also donate money. By giving corporations some of the rights of people, you are adding members to the body politic without it actually being expanded. Forget the amount of money that’s being funneled through corporations for a second, and consider the principle: If every corporation can donate money, and corporations are made of people, you are effectively multiplying a given person’s role in the process. You turn a democratic system into something resembling the Chicago system: Not necessarily vote early, vote often, but participate early and often, and beyond your singular capacity as an individual. Some people end up making an impression on the process far beyond what would otherwise be possible and some will have the force simply of their vote, turning democracy into something of a fractal for those with resources. Their influence will keep growing, and growing, and growing. It’s not that the system is unfair that makes it wrong; it’s that the system is established in such a way that fairness is not possible the moment the first corporation submits a dollar.

That is the opposite of what Kairys argues here. He effetictively says that the Court’s intent is to create an electoral system that favors the wealthy, rather than that being the effect of its decision, and that’s why its wrong. To presume the intent of the justices without any evidence is presumptuous, wasteful, and frankly just a sad commentary from someone who appears to want lefty attention more to craft something resembling a solution. Nothing in this article would pass muster in court, and both Kairys and Slate’s editors should be embarrassed for wasting our time. If the problem is as bad as he says it is, we’ve got no time to waste in getting down to business.