Supreme Court to Revisit Ban on Some Political Speech
In June, the Supreme Court sent shock waves through the campaign finance world when it announced that it would reconsider two cases that upheld bans on corporate electoral advocacy during elections. Supporters of campaign finance laws are predicting the end of democracy, but a decision tossing out the bans on corporate speech would go a long way toward establishing that freedom of speech is a right rather than a privilege.
The announcement came in Citizens United v. Federal Election Commission, a challenge to McCain-Feingold’s “electioneering communications” ban, which bars corporations from funding broadcasts that identify a candidate within 30 days of a primary or 60 days of a general election. Citizens United, a nonprofit corporation, produced Hillary: The Movie, a film that criticized then-presidential contender Hillary Clinton, which the group wanted to distribute through on-demand cable television during the primary season. The question for the Supreme Court was whether the film was the “functional equivalent of express advocacy” — that is, whether it was an unmistakable appeal to vote against Senator Clinton — and, if so, whether subjecting it to the electioneering communications ban was constitutional.
Instead of issuing a narrow decision on these questions, the Court directed the parties to address a deeper question: whether it should overturn Austin v. Michigan Chamber of Commerce (1990) and parts of McConnell v. FEC (2003), decisions which, respectively, allowed governments to ban corporate express advocacy and upheld McCain-Feingold’s electioneering communications ban. Re-argument is scheduled for September 9 with a decision likely to follow not long thereafter.
The signs do not look good for supporters of campaign finance laws. The government raised eyebrows on the Court and elsewhere during the first oral argument in the case when it admitted that Congress could ban another form of corporate-funded communication for mentioning a candidate at the wrong time: books. So it looks like five members of the Court may well vote to overturn Austin and parts of McConnell.
Predictably, supporters of campaign finance law are apoplectic. Adam Cohen of the New York Times warns that corporations will pump millions into the campaign coffers of their favorite candidates if the ban on corporate speech is lifted. Fred Wertheimer, president of Democracy 21, echoes this sentiment, claiming that corporations will soon be “buying influence with federal officeholders.”
These claims ignore the fact that Citizens United will address only whether corporations will be permitted to spend their own money on their own speech. No matter what the outcome of the case, they will still be prevented from making direct contributions to candidates.
But concerns over money in politics obscure a deeper and much more important point. For decades now, campaign finance laws have been eroding freedom of speech to the point that we are seriously discussing whether governments may ban films and books because they are financed by corporations. In short, it is time to step back and take stock of just how much of the First Amendment we have lost and how much more we stand to lose if we continue down this path.
For starters, it is worth repeating that the government admitted in Citizens United that under existing precedent, Congress can ban books that are financed by corporations. Supporters of campaign finance laws have rushed to point out that the laws do not expressly cover books, and that is true — for now. But if governments can ban corporate express advocacy contained in films and advertisements, banning books, newspapers, magazines and Internet publications is only a matter of time and legislative will.
I suspect that some of the confusion arises from the court’s growing treatment of corporations as people, with the rights of people, rather than as objects.
Is a large corporation a sort of super-citizen, able to spend amounts of money unavailable to individuals, and to employ an army of lobbyists, lawyers and propagandists in its own self-interest? Here, there is a danger that the giant megaphones of these super-beings will drown out the voices of ordinary citizens and subvert the State…
Is an association of individual citizens gathered in common political cause really the same as a corporation pursuing a commercial interest? The current forms permitted by the government — such as “non-profit corporations” — conflates citizens’ associations and businesses, making them approximately equal. Will curtailment of the ‘rights” of corporations to make political speech also truncate the free-speech rights of individuals who have come together freely into associations for political rather than business purposes?
The emergence of PACs and 527s are fairly recent experiments, new forms of association designed for testing (or attempting to circumvent) the strictures on speech and association being dictated by the Government.
I personally believe that the free speech of individuals (and associations of individuals) should be protected and amplified. I also worry that the speech of corporations, unions, and other rent-seeking commercial entities should not be permitted to disproportionally “hog the bandwidth” as they pursue their own self-centered financial goals.
Much of the current legal confusion seems to come from treating both groups as equals, even though their resources are not. The forms that the Government forces associations of citizens to take has created the problem, and by imposing these definitions the Government has pre-defined the legal solutions. And they are not pretty — identical free-speech rights for all “corporations”, or more rights for some than for others as determined by arbitrary Government fiat.
“I suspect that some of the confusion arises from the court’s growing treatment of corporations as people, with the rights of people, rather than as objects.”
I concur, 100%. I cringe every time I hear the phrase “Corporate Citizen”. Nothing in the Constitution about corporate citizens. I think we are watching the USSC re-write the Constitution again.
If America feels the need for ‘corporate citizens’, let a amendment be passed establishing such a thing.
“I would remind you that extremism in the defense of liberty is no vice. Let me remind you also that moderation in the pursuit of justice is no virtue.”
– Barry Goldwater.
Thanks Mr. Simpson. I happen to agree with your stance on this issue. The power of ideas and their influence, and the freedom to express them is precious, and should not be abrogated because of technology, current policy whims of incumbents, wealth, or any other reason.
Some may believe that if you can tell a lie innumerable times it becomes the truth. I don’t believe that. Some fear that ‘corporate speech’ is corruptive and all-persuasive and self-centered. If the ideas or positions don’t measure up then they will be rejected in an open society.
History has proven that when restraints are placed upon free expression that the danger of authoritarianism via false propaganda becomes a reality.
A point that often gets missed is how often newspapers (which are very often corporations), can influence politics. I mean let’s see her. CBS tried to change the outcome of the 2004 election with bad forgeries. the NYT is only mentioning the Van Jones story for the first time just before his resignation. numerous spurious hit pieces of palin, need i go on?
It makes perfect sense for the NYT to want to strangle freedom of speech for everyone else: then they can hope to dominate what is left.
A corporation is nothing more than a collection of people. saying a corporation cannot speak is to say that that association may not speak. its silly.
What I don’t understand is why the media is permitted to publish biased, untruthful, opinionated, and selective propaganda, at any time, under these statutes; And relentlessly pursue anyone they deem an enemy;
Why is their “free speech” exempted? They certainly qualify as corporations.
Perhaps all corporations should form a “media branch” to get their opinions published; More exposure creates more intelligent debate, and thorough knowledge of the issues. Where’s the crime in that?
What restrictions on corporate speech? GE is spewing hard core left wing ideology everyday on NBC. Obermans ‘worst person in the world’ segment is essentially Orwell’s “15 minutes of hate” come true. NBC sports also pushes the Global warming lie with broadcasts in the dark.
Lift the ban! If you can’t make your arguments in an open debate then they aren’t worth crap anyway.
- Indeed, when Congress passed McCain-Feingold, no one seriously believed the law would be applied to films.
Jeebus, this is the very point that the “death panels” comment made so well.
Every time Congress legislates in areas where it has no express authority – like providing individual health care or abrogating First Amendment rights – we see a new slippery slope opened up that invariably funnels the Republic down into the bottomless chasm of socialist “Utopia”.
McCain-Feingold didn’t prevent the corporations who employed BHO’s entrenched, lying, Fifth Column media shills from boosting his electoral totals by some 15%. If for no other reason than that it simply does not work as advertised, it should be repealed. If it takes the SCOTUS to declare it unconstitutional, that’s just fine with me.
Do they pay taxes in such amounts? Should they be subject to taxation without representation? Eliminate corporate income taxes, and you have a valid argument.
…how far behind is the fairness doctrine that directly effects what we hear on the airwaves. Indeed, newspapers etc are big corporations..with an agenda
Good article. As a recovering attorney, I recognize that it is very difficult to predict the outcome of an appellate proceeding even after the opposing sides have been heard and, perhaps of greater significance, after the questions and comments of the judges have been heard.
The Supreme Court’s holding in this case will, of course, be interesting but probably rather limited. There may well be multiple concurring opinions, opinions partially concurring in the result but not the rationale, and dissenting opinions. However, it seems to me that the various dicta with majority support are likely to be even more significant than the holding. The holding itself is likely to relate only to the “McCain-Feingold’s “electioneering communications” ban, which bars corporations from funding broadcasts that identify a candidate within 30 days of a primary or 60 days of a general election.”
In view of the current debate over the FCC’s deceased “fairness doctrine,” and its possible resuscitation with application far beyond broadcast facilities, what a majority of the Court says could encourage the present Congress to amend the Communications Act to give the FCC (or some other agency) authority over non-broadcast media and to extend year-round control over “political speech” as well as in other areas, rather than merely during the 30 and 60 day political seasons. The impact on media news coverage (including that of the broadcast media, newspapers and even the internet) could be draconian.
“For as long as we have had a First Amendment, people have claimed that their views are protected and everyone else’s are scandalous, seditious, inflammatory, unfair, distorting, corrupting, libelous, false, and inappropriate. We have a First Amendment to prevent these shifting sentiments from controlling one of the most important rights we enjoy as Americans. We give in to the temptation to alter it — explicitly or by “interpreting” it out of existence — at our peril.”
Would someone please explain this to Juan McQueeg?!
Sirs,
For what it is worth. I am a stockholder in various and sundry corporations. I am also a holder of various mutual funds. I am routinely asked, by proxy vote, or by invitation to board meetings, what my opinions are as to how the corporation or mutual fund should be run. I voice my opinions to them.
I also have the right to buy into or sell out of the funds and companies should I come into disagreement or agreement with their policies.
If the company/fund is making a return on my investment and palatable to me, I can stay invested. Should the company/fund become unpalatable to me, for whatever reason, I can sell out and take my money elsewhere.
At root, individual investors are to Corporations no different than members of the electorate are to political parties. Hod Coburn
12. Hod Coburn:
If you were treated as contemptuous as citizens are being treated in these board meetings, where would you be putting your money then?
13. Cybergeezer:
(typo): As citizens are being treated by their Congressmen/Representatives.
It wouldn’t be so funny if it weren’t completely in character…
A shy question before we go to the larger issue – I cannot see much interest amongst Democrats for exploring mister Obama’s Internet fund-rising scheme, enterprise which I found and still find (like the Internet voting idea) very disturbing.
I wonder why Obama’s funding operation is not investigated – ’till them, all other fiddling with the campaign financing is a shell game.
“Freedom Of The Press” has morphed into “Freedom For The Press” – to make absolute fools of themselves with fabricated “news” and visceral opinion.
Regardless of the Court’s findings in this case, the continued regulation of campaign funding, by whatever means, will only continue the game of making the rules to give the party in power’s fund-raising a boost while somehow restricting the other guy’s. I have believed for a long time that there should be only one campaign funding rule. Every cent should be tracable back to it’s ultimate source and on the public record. Follow the money and you can assess the real beneficiaries and their motives for supporting the proposed policies/candidates.
Wonder if Dumb John “Reachin’ across the Aisle” McCain realizes how he shot himself in the head in the 2008 election with the unconstitutional McCain/Feingold Bill. Wonder if he regrets or even understands how he bound himself in duct tape and chains. There has been MORE corruption and MORE influence wielded by less since its passage than before. Does anyone know where Obama got the almost 1 BILLION dollars he raised, largely on the internet, for his campaign? And a citizen’s group has to be punished for wanting to show a movie about a candidate??? This country has gone mad.