In a decision that could have a dramatic effect on the upcoming elections, the Supreme Court has ruled 5-4 in favor of a group of conservative filmmakers in the “Hillary: The Movie” Case. The result of the decision could increase spending for corporations, unions, and nonprofits in the election. I previously discussed the case and the likelihood of this 5-4 ruling. I discussed the case on this segment of Countdown. Other commentators like Glenn Greenwald have also weighed in on the case with similar views, here.
The ruling went down the ideological line with Justice Anthony Kennedy giving the majority the fifth vote and then writing the opinion. He stressed that “[o]ur nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.” That is the sentiment that motivated another of civil libertarians and free amendment advocates to support the conservative litigants. This is a case that split the free speech community with the ACLU and free speech advocates like Floyd Abrams supporting the conservative filmmakers in this case.
While there is much speculation on the impact on the upcoming elections, it is notable that two provisions were upheld by the Court (with only Thomas dissenting). The Court upheld the disclosure requirement that requires corporations to file a report with the FEC on contributors of $1,000 or more (when the corporation spends more than $10,000 a year to produce such ads. It also upheld the disclaimer requirement that requires that the producers say who is responsible for the ad if it not authorized by a candidate or a political committee.
However, the Court overturned critical holdings in Austin v. Michigan Chamber of Commerce (upholding restrictions on corporate spending to support or oppose political candidates) and McConnell v. Federal Election Commission (upholding the central provisions of the McCain-Feingold campaign finance law). The result is seismic for opening up elections to corporate spending. It is also a case of Justice Kennedy finally achieving a majority after voting against these limitations in 1990. While Justice Sandra Day O’Connor later changed her position to uphold campaign financing, Kennedy has remained firm that such limits run counter to the first amendment. He believes that public policy can be achieved through transparency provisions: “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”
The opinions offer strikingly different views of the First Amendment with Stevens writing: “The basic premise underlying the court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity’ as a corporation.” While that glittering generality has rhetorical appeal, it is not a correct statement of the law.”
Both the Kennedy and Stevens opinions are very compelling and fascinating. The Kennedy decision does raise some questions over the sweep on his first amendment views and why any limits on campaign finances are constitutional. It also reintroduces the question of why corporations are treated as persons for the purposes of the first amendment. That latter question could now be the focus of a fight over a constitutional amendment. My opposition to a constitutional amendment is that I believe that there are more important political reforms to the system that need to be made. I do not believe that it is the money that has caused our political system to become so dysfunctional. It is also important to note that these restrictions were imposed on unions and non-for-profit corporations. The result of the restrictions, in my view, were disturbing line drawing as to what the government considered electioneering and what the government considered legitimate documentary work as with the distinction between Hillary the Movie and Fahrenheit 911.
There is a push now for a constitutional amendment, which I would not favor. It may be time for a paradigm change in how we think about this problem. We have a political failure in our system that is sucking the life out of the Republic. The monopoly of the two parties on power produces endless loops of corruption and conflict. The problem in my view is structural not financial. We need to break the domination of incumbents and the two parties. This can be done with fundamental changes in our primary system, eliminating the electoral college, creating new opportunities for third parties, and other reforms.
The FEC ruled that the film was prohibited as a “prohibited electioneering communication.” The lower court decisions proceeded to curtail the distribution of the film by restricting the conservative group in broadcasting and promoting the movie during the presidential primaries. In July, a three-judge panel granted the FEC’s motion for summary judgment.
Specifically, the desire of the group to put the movie in TV-on-demand access on cable TV was shelved due to the FEC’s decision.
Citizen United is challenging the federal “electioneering communications” disclosure requirements in the Bipartisan Campaign Reform Act — a prohibition on corporations and nonprofits from airing broadcast ads, which refer to a federal candidate 30 days before a primary election. Citizens United is using the Court’s decision in Wisconsin Right to Life v. FEC, which exempted issue advocacy from the electioneering communications prohibition.
Watching the trailers below, it is hard to distinguish this movie from a campaign ad. However, the rulings below should trouble free speech advocates. The court found that the 90-minute campaign ad “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” That may be so, but such a conclusion could also be reached in a perfectly legitimate documentary or parody. Consider Michael Moore’s anti-Bush documentary “Fahrenheit 9/11.”
The actual restrictions and their impact on the film are a bit more technical. The McCain-Feingold legislation requires that “any broadcast, cable or satellite communications” during the period before an election clearly state the name of the group paying for the ad is one such provision.
There is no question that Citizens United, a nonprofit corporation, has a bit of an obsession and hatred for both Clintons. It is the creation of Citizens United President David N. Bossie, a long Clinton critic.
The case raised both very broad and very technical questions. The threshold question, however, is the role of the government in making this judgment call between films from Michael Moore’s Fahrenheit 911 to Hillary the Movie. Often literary works have a political purpose or message. Shakespeare’s work, particularly Richard III, has been described as a brilliant Tudor propaganda — Richard III was the last Yorkist king and vilifying the House of York was of great benefit to Shakespeare’s Tudor benefactors. Richard III was defeated by the first Tudor, Henry VII and the ancestor of Elizabeth I. In my Supreme Court seminar on the current case, my students and I discussed whether the FCC would require Shakespeare to add “Brought to you with the generous contributions of the Tudor Family.”
The vote in my Supreme Court class on the case was interesting. We split down the middle: Seven favored the ruling of the FCC while Seven would support Citizens United. However, the prediction of the likely outcome was heavily in favor of the Supreme Court affirming the lower three-judge panel against Citizens United.
Seth Waxman, who defended the law is predictably arguing stare decisis (Lat. “to stand by that which is decided”) and saying that a reversal of the earlier ruling after such a relatively short time would be “unseemly” and undermine the credibility of the Court.
Ted Olson argued that the law has created a “chilling effect” on first amendment rights and free speech. Many civil libertarians are sympathetic with those arguments — viewing the ruling as an affront to free speech. That includes Floyd Abrams a liberal defender of free speech who is representing Senator Mitch McConnell of Kentucky, the Republican leader in one of the dozens of amicus filings.
Notably, when the Court last considered this law, Justice Sandra Day O’Connor voted to supply the fifth vote upholding the law in McConnell v. FEC in 2003. Her seat is now held by Justice Samuel Alito who predictably voted with the majority. Sotomayor voted as expected the same way as Souter to uphold the law.
Notably, Alito spoke out at the last hearing at a critical moment. In the March argument, the government argued that hypothetically the government could make it a crime to distribute books advocating the election or defeat of political candidates. The distinction that was drawn was whether it was paid for by corporate money rather than a political action committee. Alito exclaimed “[t]hat’s pretty incredible.”
I was sympathetic with Citizens United and the free speech groups. In the end, I have to favor more speech than less in such conflicts. While I would have written a concurrence and have difficulty with aspects of the majority opinion, I probably would have voted to support the majority in the result in this case. However, I do consider this to be one of the most difficult free speech cases to hit the court in decades. Many of my friends are on the other side and I understand that this is quite a blow. People of good faith can disagree on such issues. It really broke along a fine line. It depends on whether your gravitational point tended to fall along the free speech line or the good government line. It is a rare case where those lines ran perpendicular rather than parallel with each other.
For the trailers of the movie, see below:
You can read the opinion at this link.
For the full story, click here.
Just in case you missed it, Obama comes out strongly on the People’s side and against the ruling.
http://www.huffingtonpost.com/2010/01/23/obama-weekly-address-vide_n_434082.html
I think some are treating the corporation as if it were some sort of artificial intelligence. While artificial intelligence is gaining some ground, and I will be in full support of limiting the speech of a truly artificial entity, the corporation’s voice is that of persons. The corporation has no voice without the persons directing that speech.
To limit the speech of a corporation would be no different than limiting the speech of an anonymous blog owner.
Bob,Esq:
Interesting points all, but again I am unsure how corporations are not protected by the First Amendment as an association of individuals like trade unions enjoy.First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978) thinks they are so protected. That clearly was the rationale for the majority in this decision. If so, why do they enjoy any lesser free speech protections?
Surely it can’t be their vast economic resources as that would also affect Gates, Buffett, et als….maybe even Bob,Esq! As the majority said,“’…resources amassed in the economic marketplace’ [are irrelevant to the protections afforded by the Amendment]. First Amendment protections do not depend on the speaker’s ‘financial ability to engage in public discussion.'” [citations omitted]. Isn’t your argument really based on your rejection of this premise?
Mespo: “How would you square your notions of the founders’ intent with the First Amendment’s right to freely associate as in the formation of a corporation? Would not your precept,if carried to its logical extension, deny to the many what is guaranteed to the individual?”
You’re engaging in the fallacy of arguing from the parts to the whole; or the fallacy of composition. The entire framework of our republic is based upon the distinction between usurpation and tyranny which in turn is based upon the distinction between alienable and inalienable rights. Corporations my dear Mespo are not mankind born in a state of nature, they are creatures of statute; owing their existence to the body of law that created them. Accordingly, they are not even products of the mere gathering of individuals.
Mespo: “Why are groups of citizens denied a voice available to them individually? If so, isn’t this the very definition of tyranny?”
First of all Mespo, you know damn well that the Court never EVER refers to a corporation as a ‘group of citizens’ because it is ALWAYS treated as an entity unto itself; even when you’re dealing with a sole shareholder. The entity, as a creature of statute, is not found within the set known as ‘mankind’ and is therefore not party to the social compact.
Finally, to paraphrase Locke, Tyranny is the exercise of power over an inalienable right. Tell me what inalienable right is at issue here.
Well, the answer is zero, as shown above in the explanation as to why corporations are not parties to the social compact.
qed
Tom DeLay now says the charges against him should be thrown out because of this ruling.
I can only ask,this ruling down the road will also effect:
” the power of the internet “
Bob,Esq:
“Again, the founders did not set up this republic based upon the social compact with legal fictions in mind as parties to said compact. The main theme going through their minds, if you were to put in in a few words, was ‘no oppression/tyranny’.’
***********************
How would you square your notions of the founders’ intent with the First Amendment’s right to freely associate as in the formation of a corporation? Would not your precept,if carried to its logical extension, deny to the many what is guaranteed to the individual? Why are groups of citizens denied a voice available to them individually? If so, isn’t this the very definition of tyranny? All salient questions addressed by the Court — and Byron.
(Moved the Buddha/Jill remark and didn’t delete the latter one. No harm in saying it twice. :-))
I agree with John C about the power of the internet and will add to it. Good, decent people coupled with “the power of the internet” may be our last, best hope. (While things are bad, they could be so much worse.)
(Where’s Buddha these days? I miss his comments. Jill’s too.)
An interesting read:
The Supreme Court Just Handed Anyone, Including bin Laden or the Chinese Govt., Control of Our Democracy
By Greg Palast, AlterNet. Posted January 22, 2010.
http://www.alternet.org/story/145354/the_supreme_court_just_handed_anyone%2C_including_bin_laden_or_the_chinese_govt.%2C_control_of_our_democracy
“Greg Palast is the author of the New York Times bestseller The Best Democracy Money Can Buy.” Palast investigated Triad Inc. for The Guardian (UK). View Palast’s reports for BBC TV and Democracy Now!”
(Where’s Buddha these days? I miss his comments. Jill’s too.)
As someone sitting on the other side of the “pond” I can only see how democracy IS changing in your country. For the first time last year you elected a President whilst also giving him the financial support (in bucket loads) to enter the White House as a truly and completely INDEPENDENTLY supported President of the people.
Corporations are SCARED – please don’t miss this point. Overturning a 20 year ruling is an act of panic and can only lose what little credibility corporations and the judiciary currently have!
Believe in yourselves and the power of the internet – you have already achieved so much to others on this planet like myself (and I am not alone by any means!!!).
Keep giving your President all the support you can – he needs it – and your pioneering actions will motivate the rest of us to action.
“The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics. (The ruling also frees up labor unions to spend, though they have far less money at their disposal.)
The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.
“In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.
This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign. The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.”
Justice Stevens criticized the Roberts wing of the court for being activist. That wing of the court has a corporate bent to it. Remember what they did in the Exxon Mobil case.
This could lead to blowback that some corporations can’t afford: when their stock prices tank because Jon Stewart associates them by name with their ridiculous propaganda. (Or version thereof…)
The founders did not write about the future scaleability of the Constitution to our current day scale of 300,000,000 people and our concentration of wealth. Add in the structural problem of members of the house always being in campaign mode, and, gerrymandering, and I’d tend to agree that the principal problem lies elsewhere.
Albeit ‘speech’ line-drawing is very difficult when it comes to paid speech in a free speech environment.
The spectre comes in some future when powerful corporations come to back (with glossy, torrid propaganda) law-and-order candidates because they’ve pissed off the little people with the severe tilt of the table, and, those people have become disorderly.
This would be ironic.
President Wal-Mart or President AFL-CIO will not change the fact that Washington does not and will not listen to what the American people think. Corporations are legal fictions designed for profit with no regard or capaicity for humanity. Seems like Washignton has always been a corporation.
FFLEO,
“However, I think the Prof is correct and his position is not mere legalistic hypothesizing.”
Perhaps. But, there comes a time when the distinction between academic exercise and practical reality collide. What then? Discard what’s “good” for what’s “right”? I agree that this whole situation is grounded in the Santa Clara v SP, which, in my view, was/is as constitutionally untenable as Dred Scott or Plessy.
Kevin wrote,
“Professor, your insouciance in this matter is maddening. ‘Hey, there goes the democracy. Bummer!”
________________________________
That was very funny Kevin.
However, I think the Prof is correct and his position is not mere legalistic hypothesizing.
Corporations Speak Out Against SCOTUS Ruling, Call On Congress To Approve Public Financing Of Campaigns
by Zaid Jilani
(Think Progress, 1/22/2010)
Excerpt:
Yesterday, “all five of the [Supreme] Court’s conservatives joined together … to invalidate a sixty-three year-old ban on corporate money in federal elections,” a move that Rep. Alan Grayson (D-FL) said “opens the floodgates for the purchases and sale of the law” by big corporations.
Today, in response to the Supreme Court’s catastrophic decision, “dozens of current and former corporate executives” from corporations including Delta, Ben & Jerry’s, and Crate & Barrel sent a letter to Congress asking it to immediately pass the Fair Elections Now Act, which would publicly finance all congressional campaigns out of a special fund created by a fee levied on TV broadcasters:
Roughly 40 executives from companies including Playboy Enterprises, ice cream maker Ben & Jerry’s, the Seagram’s liquor company, toymaker Hasbro, Delta Airlines and Men’s Wearhouse sent a letter to congressional leaders Friday urging them to approve public financing for House and Senate campaigns. They say they are tired of getting fundraising calls from lawmakers — and fear it will only get worse after Thursday’s Supreme Court ruling. […]
“Members of Congress already spend too much time raising money from large contributors,” the business executives’ letter says. “And often, many of us individually are on the receiving end of solicitation phone calls from members of Congress. With additional money flowing into the system due to the court’s decision, the fundraising pressure on members of Congress will only increase.”
http://thinkprogress.org/2010/01/22/corporations-public-financing/
Well, I guess this proves the old adage that anyone who uses the word “paradigm” is talking smack.
Professor, your insouciance in this matter is maddening. ‘Hey, there goes the democracy. Bummer!’ Change the electoral college?? Right, that should be doable in another century or two. In the meantime, there are many of us who need to live outside the theoretical debates in our own heads.
Everything hangs in the balance here…and you come down firmly on the side of big money and entrenched power. I love how you don’t even favor a constitutional amendment to change this. Nope, this is God’s law, as transmitted through Justice Roberts and Jonathan Turley, forever immutable. Now you little mortals go out there and change the electoral college, or maybe bring me the witch’s broomstick, I forget which. The great and powerful Oz has spoken.
And just for the record…NO, this is NOT something that people of good faith can disagree on, and it does not become such just because you say it is. I have NO faith in your desire to preserve our republic.
Kevin
“Which politician – federal or local, would be able to stand up to companies backed by China?”
From Duh:
“What candidate can be endorsed, and paid for by a communist country, and still get elected? … Wouldn’t their opponent point out who is backing them?
“If the candidate is being backed by Wal-Mart, do you think the Democrats are going to vote for them?”
I’m sure 30 years ago, there were those who never thought Americans would buy so much from a communist country.
What if it’s not endorsements and ads but extremely expensive and effective get out the vote efforts? A fleet of Volvo taxis? Or Hummers dispatched by Lenovo employees?
Finally, Democrats don’t decide as many elections as Independents and Republicans do.
Citizens United Revisted.
(1) SIMPLE LOGIC: Once share owners take the protection offered to their personal fortunes by accepting the governmentally enabled privileges of corporation [a legal fiction], they forgo the privileges of using those invested funds as instruments of their free & independent political will.
(2) UNDERLYING POLITICAL-LEGAL LOGIC. Only Justice John Marshall Harlan recognized that the ostensible premises of Plessy’s “Separate but Equal Logic” were legal tokens masking the harsh realities of American racism and especially Southern racism.
Plessy was wrong legally when decided because it violated the Civil War Amendments. It was, of course, also dependent upon a fabricated exaggeration of the actual differences between humans with (easily noted) African ancestry and those of European ancestry.
Citizens United was wrong when decided because it invests & creates ACTUAL POLITICAL POWER for those parties who have used the publicly protected privileges of corporation to further private and factional financial interests. At bottom this invented, fictional multiplicative extension of political influence for wealthy individuals under the guise of corporate personhood is every bit as dishonest as the pretenses of slavery & segregation.n