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.