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.
I think we should go all the way and let corporations run for office. Senator WalMart, Majority House Leader McDonald’s Inc. It would be awesome.
I wonder if you can try corporations like they did do with ownership of contaminated soils that would be wonderful.
Hence, if any person that was connected to a company that was found criminally culpable then they go to jail. The banks for a long time would not lend money on commercial property because of the possibility of contaminated soil. Ergo the Superfund Clean up.
Ah ha the possibilities……Maybe this is a decision that will effectively put all of the self dealing bankers in prison if the argument is extended…….
Mike A,
Amen
Byron,
I’m all for limiting the ability of any non-individual contributions. Corporate, Union, Political parties, and non-profits of all sort. The enemy of individual freedoms isn’t the state, it’s the group.
“So if corporations are people, as the five SCOTUS justices bought and paid for by the GOP ruled, can they be tried as people?”
Yes corporations can be (and are) tried criminally. Let’s turn the tables. If your position is that corporations should have no constitutional rights, does that mean the government should be able to discriminate against corporations owned by certain ethic or religious groups? How would you feel if the government hypothetically refused to award government contracts to corporations owned by Muslims?
If corporations have no rights does that mean the government can search corporate records without a warrant or probable cause? Should the government be able to take corporate property without just compensation? Should corporations be forced to stand trial without an attorney?
Corporations are “people” under the constitution. That is not even under debate. If you are still trying to make that argument you are not even in the right ballpark.
The question is whether special rules should apply when corporations (“legal persons” as opposed to “natural person”) talk.
rcampbell,
That is good.
Interesting. Thanks everyone for the insight.
So if corporations are people, as the five SCOTUS justices bought and paid for by the GOP ruled, can they be tried as people? Can they now vote? Can they adopt children? Is a merger between two similar corporations now what Ms Parjean would call a “same” marriage?
The government allowed a corporation to murder Iraqi civilians with impugnity and immunity from prosecution. Anyone thinking there weren’t campaign contributions–limited by McCain/Feingold–involved is a fool. Now, imagine what can/will happen with no restrictions on corporate donations. The corporate-owned Congress compromised our civil liberties by changing a law to magically make legal the illegal wire tapping they were doing which began months before 9/11. If corporations can buy that kind of loyalty with McCain-Feingold intact, just imagine how they’re salivating now.
This also allows not only US corporations and labor unions, but foreign corporations unlimited access to our election process. Equaling money with speech and calling corporation equal to voters is simply outrageous. One cannot love America and think this is okay. This is the demise of our democracy. That’s “demo”, from the Greek for PEOPLE. Today, We the People, got it driven hard where the sun don’t shine today.
Alito and Roberts should be impeached for lying to Congress under oath. They both decried judicial activism and strongly supported reliance on precedent. Both of these were on display today. This was an act of judicial activism on steroids and creating new law which may actually require changing over 100 years of feederal laws regarding corporate and labor union political cobtributions.
Finally, if money is speech, why is Jack Abranoff in jail? Does he get a new trial now?
Is it time to re-enact a Fairness Doctrine, so that the Corporation doesn’t overrun our system? Or is fairness itself – now quaint like the Constitution itself, as Alberto Gonzales recklessly quipped?
Stel, your employer, unlike a union or the government, is not a representative organization by construction. You have no standing by contract or constitution that legally compels your company to act in your best interest. If conditions your company visits on you become odious you leave unless you have a personal contract or collective bargaining agreement that gives you a process for redress or compensation.
Not to make light of you question but I would point you in the direction of the NBC late-night talk show brouhaha as an illustration. Byron is on point in saying “If they told you they believed in X and used some of their profits to support X and then supported Y maybe you would have a case if part of your employment agreement consisted of supporting X.”
Byron, “why is it ok for Unions to do this (contributions) and not corporations?” (You didn’t ask me but I’m going to take a run at answering your question)
Because unions are, like the form of government we have, representative in nature and law. You elect people to act in your best interest. If you don’t like how they do that you can vote in new people to better serve you. Corporations are not representative bodied except to the extent that their shareholders have the right by law or contract (those little flyers you get telling you where and when the next shareholder meeting will be and what your rights as a shareholder are) to make their wishes effectively known.
I can think of the Teamsters supporting RWR. This seemed to be contrary to most Unions goods.
Stel:
Duh beat me to it.
When you go to work for a company you work for them and they pay you, hopefully it is a mutually beneficial transaction. The fact that you make them money is immaterial as you have agreed to provide work for compensation.
If they told you they believed in X and used some of their profits to support X and then supported Y maybe you would have a case if part of your employment agreement consisted of supporting X.
I look forward to reading the opinion and hearing Prof. Turley’s comments this evening. However, I am not surprised by the ruling. I have always been strongly opposed to restrictions on speech, and as much as I hate the influence of raw wealth on political decision-making, I believe that efforts based purely on limiting campaign expenditures are doomed to failure. The problem is with our treatment of corporations. As soon as we determine that an artificial entity should be regarded as a person for purposes of the First Amendment, the conclusion reached by the court is almost inevitable. Of course, the chair I’m sitting in is also an entity, but you could poll it all day without getting a response. Likewise, a corporation cannot speak, drive a car or write checks for earthquake relief in Haiti. It can only act through individuals.
Preliminarily at least, it seems to me that we need to focus on two areas concerning which something can be done without adversely impacting the First Amendment. The first relates to curbing corporate power through revising the ways in which corporations are governed. For example, corporation statutes have been gradually revised over the years with two goals in mind, the virtual elimination of personal liability of officers and directors for wrongful corporate acts and the creation of barriers to the prosecution of shareholder derivative actions. There are many ways in which we can legislatively restrict the ability of corporations to act without shareholder approval and increase the ability of shareholders to ride herd on boards of directors without running afoul of the First Amendment. Unfortunately, the trend over the years has been toward immunizing corporations. No one ever seems to wonder at the irony of a system in which we preach invididual responsibility, and then give individuals an out by permitting them to form a group of individuals and file a few papers with the applicable Secretary of State.
The second area open to reform is disclosure. You can try to sell me anything you wish, but you have to tell me who’s selling it. Anonymity is the bosom friend of corruption. Full disclosure of who’s behind a particular campaign enables an honest analysis of the message, and permits counter-pressure to be brought to bear where it can be most effective. The concept that corporations favor “good government” is absurd. Corporations favor policies that promote profit. When people know who stands to profit, they are better informed. A group of health insurance companies who combine to form “Old People for Freedom of Choice in Health Care” are engaging in false advertising. But if I know that the Old People in that grassroots organization are all insurance company CEOs who live within two blocks of each other in Greenwich, Connecticut, I can judge the message accordingly. Proper disclosure would also permit the organization of targeted boycotts to express displeasure with the message.
I’m sure there are some very smart people out there with some very smart ideas on this issue. My point is that I know of no reason that we can’t deal with the problem without once again taking the route of chipping away at the Bill of Rights. Surely we haven’t forgotten already that there was way too much of that under our old friends, Mr. Bush and Mr. Cheney.
Stel Pavlou,
There’s a big difference between being excluded because of the color of your skin, and not having a voice in your employers decisions.
Byron:
“quite simply you are free to change companies and go to work for one more suited to your ideology.”
Quite true.
But the same argument was made about segregation. You’re free to go to a country club or a school that better suits you. So I’m wondering whether this apparent freedom leaves corporations open to tort cases.
Former Federal LEO
The court may have been sensitive to free speech issues, however
what does one do when all the forces of propaganda belong to one entity and all they do is use the media to beat you over the head with thier point of view.
Even members of congress don’t read legislation before they vote on it, let alone ordinary citizens who spend far too much time trying to provide for thier families.
This can only increase the perception that all politicians are crooks whose vote can be bought.
This decision may be a vote for democratic ideals but wrong for the application of American democracy.
And really there is no such thing as truly free speech.
Swarthmore mom:
that is the right spirit to have about this decision. 🙂
Ryan:
Unions are not individuals.
Buffet has turned on Obama. Don’t put much stock in him donating again. pun intended
Swarthmore mom:
I forgot about Unions taking members dues and using them to elect liberal politicians. Some of those Union members are not liberal, they had to personally fund policies to which they were philosophically opposed.
What do you say, is that right or wrong? Getting another job is certainly an option and the one I would suggest rather than limiting free speech.
But why is it ok for Unions to do this and not corporations? I don’t see any difference.
We can finally come out of denial that we live in a corporatocracy with this decision. I hope Berkshire Hathaway and Google make more money this year than Exxon Mobil and United Healthcare so they have more money for more ads. Warren and Sergei are more favorable to the democrats.