Supreme Court to Revisit Ban on Some Political Speech
Indeed, when Congress passed McCain-Feingold, no one seriously believed the law would be applied to films. That has not kept the FEC from arguing that the electioneering communications ban applies to Hillary: The Movie, and it is hard to find fault with their position. The film clearly comes within the terms of the statute. And although it does not tell viewers which way to vote, it is an obvious attack on Hillary Clinton’s character and fitness for office. That is exactly why the district court concluded that the film was the “functional equivalent” of express advocacy.
Hillary: The Movie is not alone in this regard. Books and movies often attack and support candidates during elections. In 2004, Bill Press wrote Bush Must Go, and John O’Neill, founder of the Swift Boat Veterans for Truth, and Jerome Corsi wrote Unfit for Command about John Kerry. Michael Moore’s Fahrenheit 9/11 attacked Bush, and in 2008 Citizens United released Hype: The Obama Effect.
There is no principled distinction between the many books and movies that promote or attack candidates and Hillary: The Movie. They all argue forcefully that their subject is either a great or a horrible candidate for office. They are all published or produced by corporations.
Supporters of campaign finance laws dismiss concerns about book banning, claiming that governments will never go there, but we have heard the same assurances for over three decades as campaign finance laws have inexorably grown to cover more and more speech.
In Buckley v. Valeo (1976), the Supreme Court upheld limits on contributions to candidates because they allegedly help eliminate quid pro quo corruption. The Court distinguished between express advocacy, which could be regulated in certain cases, and issue advocacy, which was supposedly sacrosanct, in order to make clear that regulation of speech was to be the exception rather than the rule.
As speakers turned to unregulated avenues of speech, governments’ interest in preventing quid pro quo corruption stretched in Nixon v. Shrink (2000) to include the prevention of undue influence of an officeholder’s judgment and later to the mere effort to circumvent existing campaign finance laws in Federal Election Commission v. Colorado Republican Campaign Committee (2001).
For example, when speakers flocked to issue advocacy to make their voices heard, they were told that it was a “sham” intended to circumvent campaign finance laws. This is the theory the Court adopted in McConnell. Several states have passed electioneering communications bans that extend beyond broadcast speech to print and Internet communications and even to non-corporate groups, as well as groups that speak out during ballot issue elections.
In short, every advance in campaign finance laws have laid the foundation for the next advance, with the result that today’s free speech inevitably becomes tomorrow’s loophole.
Even the media are not safe. Federal and state laws exempt the media from bans on corporate electoral advocacy, but the Supreme Court made clear in Austin and McConnell that the exemptions are not constitutionally required. Instead, they are mere “legislative choices.” As the Court put it in McConnell, “[R]eform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Translation: What government giveth, government can taketh away.
Unfortunately, what the government may take away depends increasingly on the vagaries of politics rather than constitutional principle. In Austin, the Court upheld a ban on corporate electoral advocacy because corporate speech allegedly “distorts” the debate. But that can just as easily be said about the media. Indeed, it often is. Recently, during a town hall meeting on health care, President Obama accused the media of “completely distorting what’s taking place.” His press secretary reiterated the point on the Today show, stating that we are all worse off “if we let cable television come to town-hall meetings and kill health-care reform for yet another year.”
This is not how it was supposed to be. The Framers gave us a First Amendment to remove protections for speech from the vagaries of politics. Freedom of speech is a right, not a privilege to be exercised by the grace of politicians or at the mercy of public sentiment. Reversing the continued destruction of free speech must start with overruling Austin and McConnell.
Money does not buy elections any more than it buys market share for products. If it did, Michael Huffington would be president by now and we would all be driving American cars and drinking New Coke.
Money buys speech. People either agree with that speech or they do not, but they are able to make up their own minds, regardless of what advertisers — of the corporate or political variety — tell them to think.
Corporate speech will lead to what more speech always leads to — a debate. Wal-Mart will support President Obama’s health care reform, as it has done, but the National Retail Federation will oppose it, as it has done. Chrysler may well speak out in support of candidates who won it favorable bankruptcy treatment, but Chrysler’s institutional investors will also be able to criticize those same politicians for destroying the value of their bonds. Corporations do not speak with one voice any more than individuals do.
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.
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.