Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, August 17, 2010

Citizens United and the culture wars

I continue to be fascinated by the fallout from Target's decision to donate $150,000 to an organization supporting Tom Emmer, the GOP candidate for Minnesota governor.  Emmer, besides being a conservative who favors lower taxes, opposes same-sex marriage (though he is trying to avoid that issue as much as possible in the campaign).  After petition drives and much boycott talk, Target's CEO apologized. Now Target, apparently after intensive negotiations, has rejected the Human Rights Campaign's demand that the company donate $150,000 to a pro-gay rights candidate.  (I would predict, though, that Target will soon take other steps to remedy this perceived lapse in its support for gay rights.)  A few years ago, I wrote an article arguing in favor of the corporation as a venue for conscience, suggesting that it is a good and healthy thing for our society when corporations take morally distinct stances.   The Supreme Court, in Citizens United, has made it easier under the law for corporations (and labor unions) to do so in the political arena (and of course, it is possible for a corporation to take many morally distinct stances outside the political arena!).  The Target case, though, illustrates how tricky it can be.  To the extent that a greater corporate role in politics is thought to be a benefit primarily for conservative, pro-business candidates, I wonder if we need to amend the conventional wisdom to clarify that the benefit may accrue primarily to pro-business candidates who avoid controversial stances on "culture war" issues.  Perhaps Citizens United is good news for the GOP's libertarian wing more than anyone else?  Thoughts?


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How things change. I remember, not *that* long ago, boycotting Target because (I had heard that) it was giving money to Planned Parenthood.

Posted by: Rick Garnett | Aug 17, 2010 11:39:54 AM

Prof. Garnett makes a good point -- it will benefit whomever is motivated and willing to sacrifice to make it so.

Of course, those positioned to "sacrifice" will be those who have room to do so, meaning the (relatively) wealthy. The poor (by and large) aren't going to take a bus across town to shop Target's competitors because they don't like their political causes.

It just moves stuff around, but probably doesn't make a big difference.

Posted by: JohnMcG | Aug 17, 2010 11:58:32 AM

I'm not sure that these boycotts affect the bottom line in a meaningful way, but I'm guessing that companies like Target hate being associated with the word "controversial" in repeated news cycles. This might be where the social media world we live in makes a difference, and gives the most motivated social activists even more power, simply in their capacity to shape the public conversation. Companies might not fear the boycotts, but they might fear everyone talking about the boycotts.

Posted by: rob vischer | Aug 17, 2010 12:02:40 PM

There is a curious convergence of themes in the past few MOJ posts. If mosque opponents "should" stop raising even "should not" objections, should HRC also stop objecting by the same rationale, and is HRC's objection equally a troubling kind of "heckler's veto" (or troubling to the same people)? What would HRC's stance be if Target donated to the ground zero mosque? What would mosque-opponent-opponents think? (I'm assuming that Muslims "oppose same-sex marriage," which is likely a mild way of putting it.) What is the view of mosque opponents of the mosque-opponents say of "should not" opposition to mosque donation on the basis of the marriage issue? Is the left engaging in "hypocracy" by opposing opponents of an anti-same-sex-"marriage" religious center, and in refraining from shouting down HRC as equally as they are shouting down mosque opponents?

Posted by: Matt Bowman | Aug 17, 2010 1:23:07 PM

that penultimate sentence would be clearer if it said "What would the view of opponents of the mosque-opponents be of "should not" opposition to mosque donation on the basis of the marriage issue?"

Posted by: Matt Bowman | Aug 17, 2010 1:25:23 PM

While I confess I can't quite figure out what Matt Bowman is saying, nevertheless I do see major differences between the Target controversy and the mosque controversy.

Target -- which has made efforts to curry favor with the gay community in the past -- is being pressured by the Human Rights Campaign (HRC) to make amends for its donation of money to the cause of an anti-gay-rights gubernatorial candidate. This would seem to be similar to me to decade-long pro-life campaign to get Target to stop donating to Planned Parenthood. (Target, by the way, earmarked the money for HIV and pregnancy prevention. It was not used for abortions.)

On the other hand, the campaign against the mosque has been turned into a battle waged with the direct participation of politicians and potential gubernatorial and presidential candidates (Lazio, King, Gingrich, Palin). Also, a conservative organization founded by Pat Robertson is trying to block the mosque developers by getting landmark status (previously denied) for a building that will need to be torn down for the project to move forward.

The mosque controversy is getting 24/7 coverage by the media. I doubt that most Americans are even aware of the Target/HRC conflict.

My point is that Target and HRC are fighting on something resembling a level playing field, whereas Cordoba house is opposed by the Republican Party, the Conservative Party of New York State, national political figures, and media conservatives. The battle over the mosque is not being played on a level playing field.

It seems to me that First Amendment guarantees are of limited usefulness if political parties organize against something and achieve by public pressure what they cannot achieve by law.

Posted by: David Nickol | Aug 17, 2010 2:05:53 PM

By the way, while I wish Target had not made the political donation that upset the gay community, the effort to get Target to donate an equal amount to pro-gay causes seems a bit like extortion to me.

Posted by: David Nickol | Aug 17, 2010 2:13:24 PM

I think there is a big difference between legitimate boycott movements, from left, right or center, against a particular company for its support of planned parenthood, or its use of exploited labor, or other such causes, and the mobilization of opposition, including by several people with a reasonable chance to be elected president in two years, to the building of a house of worship due solely to the religious identity of the congregants, especially if it involves attempts to legally block its construction, which it has, and is part of a broader movement to prohibit similar houses of worship across the country, especially given how boycotts are based on actual policy positions and this movement is based primarily on an ugly religious bigotry and xenophobic nationalism.

Posted by: DC | Aug 17, 2010 2:14:38 PM

I don't want the mosque opponents to stop speaking out against the mosque because it's somehow bad form to speak out on the issue; I want them to stop speaking out once they're persuaded that the building of the mosque is not a bad or dangerous idea. Likewise, I don't blame HRC for speaking out or organizing boycotts; I blame HRC for believing that opposition to SSM categorically defines a candidate as an extremist whom no respectable person or company can support. In other words, I don't think we can avoid (and I'm not suggesting we should avoid) the merits of the arguments.

Posted by: rob vischer | Aug 17, 2010 2:48:33 PM

I agree we can't avoid the merits. Hecklers don't themselves veto, and vetoing a heckler it itself a veto, but heckling hecklers isn't.

I think we can readily imagine (and could probably cite if we did some research) an allegedly mosque-like controversy raising concerns that resonate with the left instead of with the right. Charges of hypocrasy would then have new applications.

Posted by: Matt Bowman | Aug 17, 2010 2:56:13 PM

Of course hypocrisy is standard in politics—you condemn the other side for the same things you defend or explain away when it happens on your side (see any sex scandal of recent decades). But the answer to hypocrisy is to stop being hypocritical.

Of course, the left has its examples of hypocrisy (muted to silent on Obama anti-terrorism policies, from drone attacks in Pakistan to secret detentions, it would have loudly condemned in a McCain administration). But I think the measure of political integrity is not to say “they are hypocritical too,” but instead to say “hey, we should stop being hypocritical here.” Defusing this anti-mosque insanity is the primary responsibility of sensible voices on the right, since it is a creation of the right (and the left is divided between those who object to the anti-mosque movement on principle, those who opportunistically use it as a political weapon, and those, a growing number, who are cowardly surrendering to it), just as standing up to liberal hypocrisy is a responsibility of sensible voices on the left.

Minimizing, explaining away, or pointing to how the other side is worse on other issues is usually a dodge of this basic political integrity.

Posted by: DC | Aug 17, 2010 3:18:34 PM

Just to clarify, Target may licitly give donations to support an anti-gay gubernatorial candidate if they (1) do so in spite of his (or her) anti-gay stance, not because of it, and (2) have proportionate reasons. It is difficult to imagine, however, what proportionate reasons could be in such cases. Under any other circumstances, they are guilty of remote material cooperation with evil.

Posted by: David Nickol | Aug 17, 2010 8:07:39 PM

David, are you arguing that a candidate who opposes SSM is by definition an "anti-gay" candidate, or are you arguing that, in this case, Tom Emmer's positions qualify him as an "anti-gay" candidate?

Posted by: rob vischer | Aug 18, 2010 1:18:04 AM

Rob, the above was a lame attempt at humor. But to answer your question, I don't think opposing same-sex marriage is "anti-gay" in an of itself, otherwise one would have to classify Obama as anti-gay. But from what I know of Tom Emmer, he is anti-gay. Here's a brief excerpt from an article in The Minnesota Independent:

In 2007, Emmer authored a constitutional amendment to prohibit same-sex marriage and civil unions.

In many instances, Emmer has tried to change language in bills to that same-sex couples cannot benefit. In a bill to create standards around surrogate motherhood, Emmer attempted to replace the word “parents” with the words “mother and father.” In a wrongful death bill this session, Emmer questioned the use of the term “domestic partner” just as he has in bills aimed at providing benefits for same-sex partners.

Also, the National Organization for Marriage (NOM) apparently sees Minnesota as a "battleground state" in their fight against gay marriage:

The National Organization for Marriage and the Minnesota Family Council have released ads targeting DFLer Mark Dayton and Independence party candidate Tom Horner for not supporting a constitutional amendment banning gay marriage. The ads praise Republican Tom Emmer for backing such an amendment (though he declined to answer a question about that issue in a debate on Friday). . . .

When four of the five candidates for governor favor same-sex marriage, Tom Emmer does not, and NOM chooses to run ads in the state supporting Emmer, even if Emmer did not have a history of opposing gay rights, it would not be surprising that gay-rights groups strongly oppose him. But of course he does have an anti-gay history.

Setting gay rights aside, I found this gem:

Senate Republicans introduced a constitutional amendment Wednesday that would make Minnesota the first state to require a two-thirds majority vote in the legislature to approve federal laws affecting the state. “Minnesotans enjoy inherent, natural, God-given rights,” the bill states, and “Citizens of Minnesota are sovereign individuals, subject to Minnesota law and immune from any federal laws that exceed the federal government’s enumerated constitutional powers.”

The bill was introduced by state Sens. Mike Parry of Waseca, Bill Ingebrigtsen of Alexandria, and David Hann of Eden Prairie, and is a companion to a House bill introduced by Reps. Steve Drazkowski of Mazeppa, Bruce Anderson of Buffalo, and Tom Emmer of Delano last month.

Emmer has also authored a resolution that would lay claim to Minnesota’s sovereignty: “[T]he State of Minnesota hereby claims sovereignty under the Tenth Amendment to the Constitution.” . . .

I saw a comment somewhere saying the last time somebody tried that, there was a war. I would say support for an amendment like that puts Emmer outside the mainstream of American politics, and even setting aside his record on gay rights, reasonable people ought to oppose him. Does NOM have no standards for supporting candidates other than that they disapprove of gay marriage?

Posted by: David Nickol | Aug 18, 2010 8:27:57 AM


I can't help but notice that all the evidence you cite to build the case that Emmer is anti-gay involve him opposing same sex marriage in some form or another. The distinguishing characteristic seems to be the means he is willing to employ to prevent it.

Above you said that opposing same-sex marriage is not sufficient to support a charge of being anti-gay.

I understand you were being tongue-in-cheek with your parallelism to abortion. Still, I think that, from a Catholic perspective, the case for a pro-choice candidate supporting evil is much stronger than the case you have presented that Emmer supports evil.

Posted by: JohnMcG | Aug 18, 2010 10:38:05 AM

If Emmer's main sin is being "outside the mainstream of American politics," then I don't consider that a big deal, since the "mainstream of American politics" supports abortion on demand, supported the Iraqi invasion, the torture of enemies, and, if you consider this bad, the man-woman definition of marriage.

I can understand why a company like Target would not want to associate with someone outside the mainstream, but supporting a candidate outside the mainstream doesn't mean one is "cooperating with evil." Indeed, it would be difficult to imagine that supporting a candidate who was entirely within the mainstream of American politics would not be supporting evil.

Posted by: JohnMcG | Aug 18, 2010 10:46:33 AM

John McG,

It is one thing to oppose gay marriage. It is another thing to oppose civil unions, or to oppose every benefit that might go to same-sex couples. For example, he voted against allowing same-sex partners to bring wrongful death suits should their partner be killed. I think most people feel that same-sex partners should have at least *some* rights -- for example, the right to visit their partners in the hospital. It looks to me from what I have read so far that Emmer wants no legal recognition of same-sex partnership at all.

I suppose you can be outside the mainstream of American politics in a good way, but it looks like Emmer is very close to being a secessionist. Requiring a two-thirds majority of a state legislature to approve federal laws applying to the state would be a unilateral redefinition of the relationship between a state and the federal government. I doubt that there is any official contributor to Mirror of Justice, liberal or conservative, who would support such a law.

Posted by: David Nickol | Aug 18, 2010 12:16:02 PM

So David, if one can be anti-SSM without being a bigot, does that mean Judge Walker is wrong? Did he not say that the sole reason for opposing SSM is bigotry, which is not a rational basis?

Also, is it OK to be anti-SSM only if everyone knows you don't mean it (Obama), or if you don't do anything to stop it?

Posted by: Judge Walker | Aug 18, 2010 2:22:17 PM

"Judge Walker":

Have the courage to use your real name, and I will be happy to attempt an answer.

Posted by: David Nickol | Aug 18, 2010 6:56:38 PM

The anonymous individual who signs his name "Judge Walker" asks, "Did he [the real Judge Walker] not say that the sole reason for opposing SSM is bigotry, which is not a rational basis?"

The answer is: No, he did not. Read what he actually said, come back and post under your real name, and we can discuss the actual decision, not a caricature of it.

Posted by: David Nickol | Aug 18, 2010 7:11:10 PM