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.
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.