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.
Professor Turley, you shockingly ignore the fundamental question of law…..is it time to overturn the odious decision in SANTA CLARA COUNTY v. SOUTHERN PACIFIC RAILROAD which mistakenly and unconstitutionally conferred the rights that PEOPLE have in the Constitution onto corporations, which are simply legal entities created for the purpose of making money for their owners.
We have already suffered immense damage on may fronts from the legal protections that lawbreaking individuals can obtain by being part of corporations that cannot be legally punished for their crimes by incarceration, or even fined if they simply declare bankruptcy.
Now, we gift corporations with a fictional right of speech, which will allow the wholesale purchase and intimidation of the people’s representatives, and continue us down the path of destroying democratic representative government of the people, by the people, and for the people.
Seconded Isaac.
John,
Do your really believe that corporations are entitled to the same rights as actual human citizens? That the founders meant the freedom of speech to apply to entities that are creations of the law, rather than flesh and blood people? I genuinely do not want to believe that you and other free speech advocates have embraced such a radically pro-corporate position, but that seems to be the implication of your post. Am I wrong?
Your loyal reader,
Isaac
John,
Thanks for the history and analysis.
What was the railroad case you refer too? I’m not doubting you, I’m interested in reading the Court’s opinion.
This decision put a large hole in stare decisis and it has basically opened the door for elections being bought by corporations at the detriment of our country. The fascist label can now be attached to the United States because the government has essentially merged with corporations. I agree with Prof. Turley that we should get rid of the Electoral College, but that won’t prevent the corporations from spending Billions to get “their” people into power and it will not happen in several lifetimes, if at all. If this law “chilled” First Amendment rights of corporations, doesn’t “Free Speech Zones” chill all of our First Amendment rights? If this law “chilled” Corporate First Amendment rights, how could the Chamber of Commerce spend over $120 million to try to defeat the health care reform???
I have to try to post this one more time:
Strike, even if it starves us, because death is better than capitulating to totalitarianism. Fight and die, if necessary, it’s better than giving in to Corporate.
Like my Folger (Folgur) relative, Benjamin Franklin, I stand firm. No longer will the People obey the Supreme Court, Professor. After this abominable ruling, all rules are off the table. That means our second revolution is on the next page and that page is being turned now.
There’s nothing left to lose but democracy itself.
Corporate’s first act will be to kill net neutrality, which will seal our fate.
Watch it happen, and go ahead, let it happen. My ass!
There is I think a legislative solution to this that would not be too hard to implement – in fact I think conservatives would have a hard time opposing it other than by stealth.
The Stockholders’ Right Act
-would prohibit the management or board of a corporation from any contact with government that entailed a cost – eg. campaign contributions or lobbying – without the express permission of the holders of 2/3 of common stock.
Otherwise the stockholders could be forced to stand by and watch the officers supporting the candidate, party or policy that they opposed. Where’s the protection for their free speech?
Good history and analysis John. I have no problem with corporations having rights similar to individuals so long as they have consequences like individuals for wrong-doing like the death penalty or periods of long inactivity enforced by law.
After watching a long diatribe from Olbermann of how the republic will collapse after this decision, I saw Prof Turley come on the Keith Olbermann show and I dispaired as to what Prof Turley would say. After all Olbermann usually only invites guests who agree with him.
I totally disagreed with Olbermann on this issue, and yet I totally respect Prof Turley’s opinion on almost everything.
Imagine my surprise when Prof Turley actually (abeit apologetically) disagreed with Olbermann! I sighed a relief, we were still on the same page.
Even his solution is almost exactly what I would say, the two party system has a stranglehold on our political system, and the problem is not to be solved by attacking the symptoms, and diluting the 1st Amendment in the process, but affecting the infrastructure that makes such donations so easily perverted.
Although the corporations may now have a open unfettered field, it is better that that may be, then prevent anyone from TALKING about an upcoming election, or even putting money where anyone may feel like.
The latter is simply freedom to do with your speech and your money as you see fit.
Corporations are creatures of statute and can (and should) be governed by statute. They are allowed to be created at will by natural persons in order to be aggregations of capital, which in many ways facilitates commerce. Their legal status and characteristics are appropriately set by statute, for the public welfare, and they should have no more “rights” than the legislature decides they ought to have. For example, they can be sued, because without that law they could do whatever they wanted and people could have no legal recourse against them. They can be tried criminally, for the same reason, but note that they cannot be arrested, thrown in jail, required to post bond before being released, etc. and if found guilty, they cannot be sent to prison (although their officers can be, again by statute, while the corporation goes on about its business), but merely pay fines instead.
The issue of whether corporations should properly be considered “people” under the Constitution is *precisely* at the center of this debate. As Justice Stevens noted: “…corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.” I would go farther and point out that corporations do not eat, drink, sleep, or breathe; they can live forever; they can exist and operate in thousands of locations around the world simultaneously; they can carve off pieces of themselves which then become separate corporations in their own right; they can acquire ‘citizenship’ across multiple international boundaries simply by registering and paying a fee (witness Halliburton moving its corporate headquarters to Dubai in order to avoid US income tax); the list of differences between corporations and people goes on. Corporations do not have human concerns; they exist for profit and have that explicit goal, solely to better the fortunes of their shareholders. Their officers, employees, and shareholders all have political rights under the Constitution because they are all natural persons, so to deny corporations the right to be involved politically does not limit the right of any people involved with them to be so involved, as individuals. However, to allow them this right is exceedingly dangerous to our democracy, because of the overwhelmingly large amounts of money they can bring to bear to skew our entire political system. The Fortune 100 alone has combined revenues exceeding $13 trillion. They can afford to buy outright every single member of congress for generations to come, and I believe they will now proceed to do so because it’s advantageous to their profits.
The legal fiction that corporations are “persons” and are thereby entitled to the same constitutional protections as natural persons got its start in a Supreme Court case in the late 1800’s involving railroads. The Court itself made no such ruling, explicitly noting in the opinion that they avoided any such ruling; rather, the court reporter, in summarizing the case in a headnote (which has no force of law), erroneously (some say deliberately, he being the former head of a railroad) flatly stated that “corporations are persons” under the law. This was picked up and (erroneously) used as precedent in later opinions. Some decades ago it was explicitly against the law in most states for a corporation to have *any* involvement in the political process, to publicly favor one candidate over another. Penalties included heavy fines; imprisonment for corporate officers; and, significanly, loss of the corporate charter (ie, right to do business) in the state. Personally I would love to see a return to those laws.
Incidentally, I would apply these same comments to labor unions, churches, or any other organizations. An organization of people is not the same thing as the individual people themselves, and the founders were deeply concerned to guard against the political influence of aggregations of capital (corporate or otherwise). I believe the notion that the Bill of Rights should apply to anything other than human beings would be anathema to them. We the People, and democracy itself, took a grievous blow today.
Worse than the Dred Scott decision? By a factor of ten!
Professor! et tu?
Sorry, but these are extraordinary times. Our nation is now in free fall as a result of this travesty. Free speech no longer matters because no matter what we say, we’re trumped by Corporate.
We are oh so close to lock and load, sir. But before that, I would tend to favor a national general strike against Corporate and take what comes.
The decision was obscene, reckless, and devastating. Talk about not seeing the forest through the trees at Columbia U. This is now a fascist dictatorship.
Corporate is not a person, sir.
Corporations are not People.
the question isn’t whether one is an academic or practicing professional…the question is whether an “enity” is a person entitled to the rights of the 1st amendment of freedom of speech… an “enity” is made up of persons and is not a person…a person makes a decision an ‘enity’ has many persons making a decision…those persons may not be living in the prespective distict they are funneling money…
Justice Roberts in his hearing for his seat stated that a 2 case precedent shall not be overturned…someone remind him of that….
This is a disgrace embarrassment for the rule of law and those who care about justice.
Exxon Mobil has so many resources to advertise what they want for energy policy compared to the environmental groups. I just don’t understand what is good about this.
Former Federal LEO
“Politics and elections have *never* been a “level playing field”. Therefore, it is up to the electorate to decide who is on the ‘level’ and who is not.”
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Well said and directly on point.
“http://www.youtube.com/watch?v=dib2-HBsF08”
Byron,
We live in a world vastly different than that of the time the Constitution was written. Not just because of technology, but also due to the enormity of the population. The saying goes “my right to swing my fist ends where your face begins,” and four farmers with acres of land between them have a lot more room to swing their fists than a 100 people living in the same apartment building.
That being said, there was a concern with corporations and their potential to give rise to a class aristocrats. The Tea Party wasn’t only meant to hurt the British Government, it was meant to hurt the corporation benefiting from the unfair taxes in place. Maybe a return to a fixed time limit on the existence of individual corporations might solve a few of our modern problems.
By way of clarification: I should have replaced “the enemy of” with “the possible threat to” in “The enemy of individual freedoms isn’t the state…”
gYGES:
that is an interesting thought, the “group” could possibly be a detriment to our republic. I guess National Socialism in Germany is a good example of how a “group” could come to power.
But as you say if you have an objective rule of law it would be hard for a “group” like the National Socialists to gain power and remember Hitler basically took power from an old tired man.
I think Germany is a different case though, I read a very interesting book recently about the intellectual history of the Communist Manifesto and came away feeling that the Germans had been primed for Hitler by way of Hegel and Marx.
We have our founding documents to fall back on when the republic is in trouble. So all in all the “group” is not the problem so much as a destruction of our founding documents to the point where a “group” could take power using a perverted Constitution.
Which is what has been going on for well over a hundred years. A little bit here a little bit there. Heck probably at the very start there were in place contradictions that have caused the problems we are seeing today.