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.
Byron–
You siad: “Finally after beating my head against a wall you are beginning to understand.”
I’m beginning to understand what…exactly?
My husband has owned a couple of businesses. Maybe most small businessmen and women would prefer to spend time and money improving their companies. Unfortunately, I don’t believe this is true of many big corporations and the people who serve as their officers.
You said: “In fact I bet most true business men would rather spend time improving their companies than having to try and bribe congress to give them some breaks. When people are truly free things seem to work out as nature intended. The problem comes from too many cooks trying to have a say on what goes into the stew. laissez faire-leave it alone.”
Oh sure–and companies won’t pollute the air and land and water if we just leave them be. The bosses will forego huge bonuses in order to help provide their employees with health insurance and pensions and better working conditions. The head honchos of big corporations and banks and businesses on Wall Street care most about the common good and not about enriching themselves.
I think you and I must live on two different planets!
If I boycott or choose not to consume ideas or products from corporations there are no negative consequences. If I boycot or choose no to give the government my $ I get fined and risk imprisonment and loss of my constitutional rights. Therefore I think that more information and less meddling by the feds is good. And when I see that XYZ Inc is behind maggot #1 I will vote accordingly.
More Freedom = Less Government
RCAMPBELL/ELAINE:
“the money would be better spent within a company to lower prices or raise wages or improve work conditions”
that is what a capitalist engaged in true rational self interest would do. Finally after beating my head against a wall you are beginning to understand.
In fact I bet most true business men would rather spend time improving their companies than having to try and bribe congress to give them some breaks. When people are truly free things seem to work out as nature intended. The problem comes from too many cooks trying to have a say on what goes into the stew. laissez faire-leave it alone.
The American Civil Liberties Union filed an amicus curiae brief on behalf of Citizen United and the corporate pigs.
I just resigned my ACLU membership.
rcampbell–
“…Heck, the money would be better spent within a company to lower prices or raise wages or improve work conditions or, for the me-firsters, pay a higher dividend.”
I agree. Maybe the money could be better used to pay for their employees health insurance and pensions too!
From bdaman
“I don’t like it. I hate to see one dollar spent in an attempt to elect anyone. If you add up all the money regardless if it comes from a one dollar donation or a million spent on a advertisement, I think the money would be better spent on solving real problems. Hunger, disease, the welfare of children in poor countries”.
Couldn’t agree more. Heck, the money would be better spent within a company to lower prices or raise wages or improve work conditions or, for the me-firsters, pay a higher dividend.
Eniobob:
So, I didn’t quite get where you lean on that decision, New York State limiting baker’s hours.
I lean towards personal freedom, if a baker (or anyone) wants to work longer hours, why does govt have any right to stop him/her?
BTW, I too am no fan of large corporations, or even of corporations being treated as persons, they should be treated for what they are, coalitions of people who have common goal. All rights currently retained by a corporation would still be retained by the people who run them, but so would the personal responsibilities and liabilities.
If the corporate veil did not exist, then this whole controversy would deflate into whether rich people, or people who control other people’s money, have the right to donate to political causes or campaigns.
eniobob:
isn’t the length of time a person works a private matter between the employer and the employee?
And to be honest 1905 was a long time ago. The 40 hour week would have come about in any event as employers became more sophisticated about productivity and length of time worked. It actually goes down if you work too much and I believe I read something recently that one company was looking at a 6 hour day because more gets done than in an 8 hour day.
most here seem to paint conservatives and free market capitalism with a very dark brush. I don’t think a child should work in a coal mine but at one point in our past history it was necessary and in certain developing countries it is necessary as well. is it good no, but then starving is not so good either. Most of what you call capitalism today is not, it is a mixed economy some socialist elements and some fascist elements. there are many people who believe the mixture is the problem and is a distortion of capitalism or laissez faire, “leave it alone”.
most here say there will be a diminution of freedom by this decision, I don’t think so but only time will tell.
And by the way if the NJ gov is limiting the free speech of unions he is wrong and is no friend of liberty. but then he really isn’t a true conservative to begin with.
I suggest you look into BBT Bank and it’s Chairman, John Allison. BBT is one of the better run banks in the country and has a core philosophy of doing business that you may find interesting.
I imagine someone politically savvy will print up a Congressional menu for corporate heads. “Let’s see,” says the CEO to himself as he rubs his palms together while salivating, “I’ll have two from Column A and six from Column B this election.”
Mr. Turley I was quite surprised by you agreement with the court’s decision. No matter how much you analyze this case from an academic standpoint, in the end this does give free rein to corporate America to spend whatever it wishes from the corporate treasury to support candidates that will advance its goals. Right now we have broken government in Washington. Part of the reason is that so many congressmen are beholden to corporate interests. They are bought and paid for as some would have it. The average American cannot compete with an Exxon or Goldman. Therefore, corporate money will always trump the people’s interests. Honestly, I think you are denying the practical implications of the decision. And you are certainly not seriously discussing the politics of it where a court in an election year suddenly elevates a case far beyond its original importance, puts it on the fast track, and then cranks out (rams) a decision in record time. Don’t you find that just a tad distasteful? I know justice is not fair. But don’t tell that to the average guy in the street.
I didn’t copy the whole definition but,what better place for me to ask this question.
And is this what is meant when someone nominates some one to the bench and the opposition party raises this question?
Judicial activism is not prisoner to any particular ideological or political viewpoint; it can be conservative as well as liberal. A long period of American history was characterized by conservative judicial activism, by a Supreme Court unwilling to allow the states or Congress to pass legislation that would regulate social or economic affairs. Typically such legislation—laws governing child labor, workers’ hours, and so forth—would be invalidated as violations of the Constitution’s Commerce Clause or Contracts Clause or of the judicially created doctrine of “liberty of contract” under the Due Process Clause of the Fourteenth Amendment (see Contract, Freedom of). The best‐known example of conservative judicial activism is Lochner v. New York (1905), a case in which the Court invalidated New York’s law regulating the hours bakers could work as a violation of “liberty of contract,” a part of the doctrine of substantive due process under the Fourteenth Amendment.
I thought Bush v Gore was low. What is amazing to me is that republicans who say they are not for activist courts actually favor them as long as they have appointed them.
I understand the issue. It is simple but no less disheartening to find that sociopathy would become a desired quality in a corporation head, hubris the most common, and greed for power SOP…………The sad truth – our founding fathers never imagined our citizens turned corporatists would stoop so low
So does anybody think this supreme court will hear a challenge to NJ gov Christie’s executive order 7 limiting union campaign contributions? The contortions they’ll perform to limit unions without limiting corporations will be a sight to see.
Let’s stop calling them republicans. They’re oligarchs.
Corporate lobbyists will have more power not less. They can go to a member of congress and literally bribe them by offering to advertise for them if they vote a certain or advertise against them if they vote another way. Politcal consulting firms will experience job growth.
Puzzling:
I disagree with your first 2 points but you are spot on for the rest of your post.
Corporations pay lobbyists to purchase face time with our elected officials now. I would rather have an advertisement being played on TV or in print that I can read vs. some slick K St. lawyer giving 200k to Rep. Smith for his “favorite charity” for consideration on the next dam project.
Voters will just ignore political advertising even more than they do now.
I don’t like it. I hate to see one dollar spent in an attempt to elect anyone. If you add up all the money regardless if it comes from a one dollar donation or a million spent on a advertisement, I think the money would be better spent on solving real problems. Hunger, disease, the welfare of children in poor countries.
In an interview with the wife of Jim McMann owner of WWF, I think thats it, World Wrestling Federation. She is running for political office for her state. It has been estimated that she will have to spend $50 million dollars of her personal money to achieve her political goal. I do not understand how some one would be willing to gamble that much money for political gain.
That is one person, you do the math, add in the corporate sponsors and everything else to boot and the amount of money spent for political gain in one, two, three years could solve alot of problems for alot of people.
The censorship will be done by the military media oil complex who will decide who they will allow to use their services as well as the price of those services.
Check out some corporate media ownership factoids:
http://blogdredd.blogspot.com/2009/09/ge-serves-pentagon-on-tv-near-yoo.html
Where is Buddha indeed?
AY mentioned that he has family matters to attend to. Maybe AY will clarify.