John O. McGinnis

Professor John O. McGinnis is a graduate of Harvard College and Harvard Law School where he was an editor of the Harvard Law Review. He also has an MA degree from Balliol College, Oxford, in philosophy and theology. Professor McGinnis clerked on U.S. Court of Appeals for the District of Columbia. From 1987 to 1991, He was deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice. Professor McGinnis is a scholar in both the areas of constitutional and international law. The Office of the U.S. Trade Representatives has added him to the roster of Americans who can be appointed as panelists to resolve World Trade Organization disputes. He is a past winner of Paul Bator award given by the Federalist Society to an outstanding academic under 40.

Citizens United and Information for a Democracy

July 13, 2012

[This is the last in a series four posts on Citizens United.  The first was Citizens United—The Most Important Decision of the Roberts Court; the second was Citizens United—A Renormalization of First Amendment Law; the third The Manufactured Hysteria Over Citizens United.]

In my first three posts, I showed that Citizens United is far less important for its direct effects than for an analysis that makes clear that speech at election time deserves the full benefit of the First Amendment’s charter of freedom. This decision to follow neutral free speech principles not only prevents judges and legislators from manipulating doctrine to their own advantage, but also helps temper an essential problem for democracy: how to get information about the issues at stake in an election to voters who do not much follow the news and yet may be decisive. Our age of accelerating technology exacerbates this problem, because it multiplies the distractions from public life.

Fortunately, citizens unsurprisingly focus on politics more at election time. Candidates and their supporters also have incentives to provide information that will gain their attention. Hence the importance of speech during campaigns. To be sure, that information of candidates and their supporters will be self-serving, but their opponents have every incentive to counter distortions and falsehoods. As I describe in my book Accelerating Democracy, there is evidence that the more campaign advertisements are aired, the better informed become citizens about candidates’ positions and ideology. Critics lambast 30-second commercials as simplistic and dumb-downed. But for many people, the alternative to a political advertisement is not a policy seminar but a beer commercial.

There are two thoughtful criticisms of the consequences of a free speech regime at election time. Read More »

The Manufactured Hysteria Over Citizens United

July 12, 2012

[This is the third of four planned posts on Citizens United.  The first was Citizens United—The Most Important Decision of the Roberts Court; the second was Citizens United—A Renormalization of First Amendment Law.]

Critics of Citizens United have intimated that it will result in a huge increase of for-profit corporate independent expenditures. President Obama played to such fears when he claimed in his 2010 State of the Union address that the decision “opened the floodgate for special interests–including foreign corporations–to spend without limit on our elections.”

At the time, it was widely reported that the president was falsely characterizing the decision: Citizens United did not invalidate prohibitions on campaign expenditures by foreigners, be they individuals or corporations. But it is also now clear that not many for-profit corporations make independent expenditures directly on behalf a candidate. Moreover, for-profit corporations give less than 20% of so-called Super PAC money used for independent expenditures for direct support of candidates. And many, if not most, of these donating corporations appear to be shells for individual contributions.  (In my view, Congress and state legislatures should require such shell corporations to disclose the individuals behind them: Citizens United expressly permits disclosure laws). Publicly traded corporations appear to give less than 0.5% of all Super PAC funds. Thus, the amount of for-profit corporate treasury funds being spent in elections as a result of Citizens United represents a very small portion of total election expenditures. Citizens United has not released a floodgate of for-profit corporate independent expenditures. The president was in this respect no better a pundit than he was a legal analyst.

The New York Times recently reported that corporations are giving more to 501(c)(4) “social welfare” organizations, which can use a portion of their funds to run issue advertisements in elections. But this increase has nothing to do with the doctrine of Citizens United. Read More »

Citizens United—A Renormalization of First Amendment Law

July 11, 2012

[This is the second of four planned posts on Citizens United.  The first was Citizens United—The Most Important Decision of the Roberts Court.]

At the root of almost all speech regulations during a political campaign are slogans and distinctions that the First Amendment would never tolerate in areas of social life other than elections.  Begin with the mantra beloved of campaign finance reformers: “Money is not speech.” It is used to argue that independent expenditures supporting messages in a political campaign can be regulated.  But in the normal course, the First Amendment prohibits regulation of expenditures when that regulation is targeted at speech. Thus, a government restriction targeted at the amount of money a newspaper could spend for investigative reporters would be obviously unconstitutional, as would as regulation targeted at the money that a publishing house could pay to acquire a manuscript. The reasons the First Amendment prohibits such regulations are obvious. To speak effectively one needs resources.  The government can successfully suppress speech by aiming its restrictions at the money spent on speech protected by the First Amendment no less than by directly regulating the speech itself.

Citizens United is to be praised for refusing to make distinctions in speech at election time that the Court does not apply in other areas of the First Amendment. One of those distinctions is corporate versus non-corporate speech. In areas other than elections it clear that corporations enjoy speech rights equal to partnerships and individuals. The Metropolitan Museum of Art cannot be told to what art to display or when to display it, even if it is a non-profit corporation. Many famous First Amendment decisions protected the rights of for-profit corporations. New York Times v. Sullivan is the foundation of modern free speech protection against libel actions by public figures, yet the New York Times is a for-profit corporation. The language of the First Amendment does not make distinctions between corporations and individuals. Moreover, the First Amendment’s purpose is well served by permitting citizens to use mechanisms such as corporations for joint action that gives them more effective speech rights.

In dissent, Justice Stevens argues that media corporations may be different because of the protections of the Press Clause. But to make such a distinction would again not accord with First Amendment jurisprudence:  the Court has not generally given greater protections to the press. There is good reason for declining to make such a distinction. Read More »

Citizens United—The Most Important Decision of the Roberts Court

July 10, 2012

Although it might not be widely recognized, the most important decisions of the Roberts Court to date have been Citizens United v. FEC and American Tradition Partnership v.  Bullock, the case decided in June that reaffirmed Citizens.  Their importance does not lie in what President Obama and much of the press emphasize about them.  The portion of their holdings that permits for-profit corporations to spend money directly advocating the election or defeat of candidates has had little effect on political campaigns. Instead what is crucial about the decisions is that five justices on the Court analyzed political speech at election time through the prism of ordinary First Amendment principles.  One might not think that development extraordinary, except that the dissenters in these cases and campaign finance “reformers” in general want to place election campaigns outside the ordinary protections of the First Amendment.

At stake is nothing less than how much information voters will get and thus how sound our political decisions will be in the long run. Read More »