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 am so thankful the court has stepped in to protect the political speech rights of corporations! I’ve long been alarmed by the decline of the political system. It’s so utterly undemocratic that all these horribly unpolished ordinary citizens are allowed to clog the airwaves and monopolize all my representatives’ time. They’ve got no zing! No razzmatazz! I know my Senator, Blanche Lincoln, could be so much more effective in getting done what really matters if America’s great corporations could somehow get a foot in her door.
Where is Buddha indeed?
As no fan of big corporations, I welcome the decision. Unleashed by this opinion, the corporations, as they overstep, will do directly what they now do indirectly through trade groups etc. Once the public sees these wolves in their wolves clothing I think we will see the backlash that I have been waiting for, for a lot of my adult life. We may actually get a participatory democracy again instead of a populace that cedes their interests to those with enough money of charisma to make them think that it’s ok to merely get along with their own personal lives. Self-governance just isn’t that easy, and corporations would do well to remember that most favorable decisions come with unintended consequences. All persons, even the merely legal ones, answer in the court of public opinion. No one wants to be a pariah when you have to sell things and services to stay afloat. Can you say “W. R. Grace, Johns Manville, Phillip Morris, A.H. Robins, ….”
CEJ
Not only do corporations/unions exist, though not live, they can exist forever. Corporations/unions in New Hampshire can influence elections in Iowa where they have no local interests. Their only interests are in controlling the election process and every elected official therein—forever.
Gary T
The Supreme Court has set precedent several times denying the broad claim that speech is money. As recently as 2007, this court ruled that a limited number of certain types of ads were exempt from the McCain-Feingold law, but left the bulk of the campaign limitations in place.
Now this Roberts’ court went so far as to decide on issues not even before the court. They were asked to rule in a specific case to decide if a corporation must disclose the names of the shareholders of a corporation use campaign contributions were being used for ads. The court took the judicial activist route so decried by the hypocrites Kennedy, Scalia and Thomas and the perjurers Alito and Roberts and virtually gutted McCain-Feingold.
If you like what’s going on in the corporate-owned Congress now, just wait 10 years. “The Senator from Exxon relinquishes two minutes to the Senator from Microsoft”.
Why do Conservative hate America so?
George H.W. Bush to endorse Hutchison on Friday
http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/legislature/stories/DN-kbhbush_22tex.ART.State.Edition1.4bc5682.html
Money is not speech. But it’s really useful when your intent is to bribe. This is legalizing corruption. Welcome to Fascism.
Stephen Pitt.
Stephen Pitt’s the modern day Thomas Nast. The drawing on your site are good.
I can see the arguments here center around the concern of corporations having too much economic power compared to individuals, in funding a campaign, and thus justifying a curb to the corporation’s public speech or expression.
The fear is that a concentration of money available to corporations will totally swamp any contributions that may be made by individuals in campaign finance, and thus control the process by inordinately representing the campaign effectiveness of politicians who favor the subject corporation’s interests.
Although I might concede this is a concern, I still believe it cannot be a basis to curb voluntary speech or spending by any entity. Corporations are still made up of people, and the people who run them may have a preference for one candidate over another. To illegalize what that collection of people choose to do with their legally earned money, is simply a violation of the Constitution. People, whether they go solo or in collectives of unions or corporations, should not be curtailed in their participation of the political process. If there is a subversive element to the political process, to the point where the public is being prevented from getting the campaign promoted by lesser candidates (lesser in the sense of less money), then that should be dealt with, in a compartmentalized fashion – it is not justification for violating the precepts of the US Constitution.
What about corporations that are not based in the United States or those who are based here that operate internationally? Doesn’t this involve a lot more than just internal politics?
IMHO, one of the most important reasons for not granting corporations the same rights or freedoms(in the political process) as living persons, is that corporations unlike we mortals are insensate they only exist; they do not Breathe, Feel, Love, Care or Die!
P.S. Where are you Buddha?
Mespo,
From your comment at 11:23pm:
“… explain to me the rationale for depriving corporations with unlimited stores of cash from participating in the political process as distinguished from depriving individuals with similar assets from participating in the political process…”
IMHO the “distinction” is there is no such thing as “similar assets” when comparing corporate wealth versus individual wealth; for example, in 2009 Forbes put Bill Gates #1 with total assets of $45 billion, while $45 billion was just one year’s profit for Exxon.
http://www.forbes.com/lists/
Mespo,
With respect to the framers, I see no evidence that the framers would ever endorse equating the freedom of speech of natural people with that of corporations. As you say, they were quite cautious about it.
The Supreme Court has held on numerous occasions that the freedom of speech can be limited with respect to elections. Not every person or entity is entitled to contribute to campaigns freely – foreign nationals, or government employees, for example. These restrictions are in place as a result of the special status and identity of the groups in question. As Stevens notes (did you read his dissent?): In the election context, “the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled.”
So, should US registered subsidiaries of foreign-based corporations doing business in the US be allowed to fund political campaigns?
Mespo,
The question here is whether corporations should be able to use their vast capital resources to influence elections. Do you see no distinction between a corporation or a natural person? Or perhaps I should ask: What distinctions do you see between a corporation and a natural, living person? Let’s start with that one.
My question is: what happens when circumstances develop that allow for someone’s (the corporation’s) free speech to completely annihilate my free speech?
Steve Soto:
“In essence, you are advocating letting checkbook democracy have a free hand in order to protect the First Amendment.”
************
Perhaps you could answer my question at 11:23 p.m. in the context of the above-sited portion of your comment. If we do that already with respect to natural persons with fat checkbooks why should it matter with respect to collections of natural persons with equally fat checkbooks?
Greg:
There is a considerable difference between electioneering and voting. An alien may participate in electioneering but still may be legally prohibited from voting as may well an underage person or a convicted felon in many states. I do not see the argument there.
Greg:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
***********
Just as there is no limitation on the application of these rights to only US citizens I see no limitation as to natural persons either thus suggesting their derivatives also enjoy these rights. I agree that a collection of natural persons in the form of a corporation does not shed its collective right to speak, and I see nothing in Stevens’ summary that persuades me that the founders were anything other than cautious in their approach to the exercise of corporate economic power. They spoke as much with their legislation as with their judicial opinions and there is a dearth of evidence that they intended to limit the free speech of corporations in the manifest public policy of the United States.
While I appreciate your wanting to let Stevens serve as your mouthpiece, your supported thoughts would be more welcome.
Mespo,
The reason corporations are treated differently from living people with respect to electioneering is pretty obvious on the face of it, no? Corporations are not citizens. Corporations also cannot vote. Nor can they hold office. We do not treat corporations as identical to living persons because they are not identical to living persons.
Professor, in your zeal to defend the First Amendment you are willing to give equal standing to a multi-million dollar PAC and an individual citizen, and naively think that disclosure requirements will be an adequate safeguard against Corporate America buying outright the two parties. I respectfully submit sir that you have jumped the shark.
In essence, you are advocating letting checkbook democracy have a free hand in order to protect the First Amendment. To go further and opine that third parties and anti-incumbency measures are an antidote assumes the people can magically push past Corporate America and the corporate media to institute these “reforms”. Unions will never be able to compete with the resources of Corporate America and conservative religion in this country, and good government groups will never be heard on these airwaves or on a soon-to-be-controlled Internet if they also have to go up against glossy, well-produced, and endlessly-funded opposition groups all calling themselves “X for Reform”.
Civil liberties and personal rights were sold off today to the highest bidder, all for the sake of protecting the First Amendment.
Thank you, sir.