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.
“Which politician – federal or local, would be able to stand up to companies backed by China?”
That would be a much greater danger if disclosure was not required. The question should be; What candidate can be endorsed, and paid for by a communist country, and still get elected? Are these people running unopposed? 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?
The Court permitted the corporations to have a voice, but they also required them to disclose who that voice is. Or did I misunderstand the decision of the Court?
Lotta:
they would be paid for 40 and recieve benefits or so the article said. but these were not factory workers or Wal-Mart employees but white collar.
Duh to Bdaman,
You are still missing the letter “C.” You have pretty much hit every constants’ except C.
BYRON: “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.”
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Know why it was necessary? Profit margin. Tunnels to coal seams and shallow coal seams are not as profitable if you have to cut the rock tall and wide enough to get adults and mules in to them. Mules for pulling coal laden sledges are expensive to feed and tend to and replace. Having children do the labor meant shafts to shallow seams could be cut smaller and shallow seams could be worked more productively. Corporations have, do and will kill children to make an extra penny on the bottom line. The use of child labor has not ended BTW, child labor has just been outsourced to our third world trading partners (including China and India) these days.
http://perryopolis.com/coal.shtml
“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.”
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6 hours is legally part-time work, no benefits for workers legally mandated.
Professor Turley,
Let’s say China uses it’s $2 trillion US dollars to buy Walmart, GE, and Exxon-Mobil and a few other Fortune 100 companies.
Let’s say it still has enough US Dollars to spend hundreds of times the campaign funds for all parties for all Federal offices in 2008.
Which politician – federal or local, would be able to stand up to companies backed by China?
How soon will we be able to enjoy the same free speech rights as the Chinese?
Buddha, I hope you’re O.K.
Thank you! AY
And I’ve got to get back to work. There’s more than enough motivation now!
I enjoyed your final appearance on Countdown. Did Olbermann know you were going to come down on the side of the First Amendment and claim that unions would benefit as much as corporations?
Gary T & Byron:
What i was asking is I hear the words “legislating from the bench” and also “activist judges”.
Would this decision fit into those catergorys?
“I hope we shall… crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and to bid defiance to the laws of their country.”
– Thomas Jefferson, letter to George Logan. November 12, 1816.
Hey Tom, you’d roll over in your grave if you only knew what was going on now. America has just been hired by the corporations.
Corporations will no longer have to defy any laws, because their employees, formerly known as senators, congressmen, and the president, et al, will make the laws as our new corporatocracy sees fit!
Once corporations were merely our overlords with their political influence, now they are as gods.
America is no longer a democracy! It is fast becoming a fascist (yes literally) corporatocracy.
SHAME, SHAME, SHAME!
Watched JT on Keith and of course read this article. There is much that is persuasive in the argument that this removed a limitation on Free Speech. Certainly, the Election Commissions preventing the showing of this movie, no matter how scurrilous it might have been, was indeed an act of censorship. However, even in the field of Constitutional Law the importance of context cannot be discounted.
The current context in the US is that our media, corporate controlled and limited to a few major entities, is doing a terrible job of informing the public on the issues of the day. Whether it is Fox News, that serves as an outright propaganda outlet, or the other cable news shows including Keith, the information provided to the public is incomplete and innaccurate. The concept that 60 senate votes is necessary to legislate in the Senate is an example. Without the contextual history, with the lack of Civics education, the general public is misled as to the truth. The fact is that most people aren’t stupid, or lack the ability to vote in their own self interest, they are just woefully misinformed as to the issues and blithely unaware of the inroads Corporate Power has made in controlling this country.
Secondly, political campaigning is now indistinguishable from marketing. Marketing is a field where Advertising Agencies, Public Relations experts and Corporate sophistication has become an art. The idea is not the quality of the product, but getting the public to believe in its quality. The new paradigms in psychology are such that people can easily be influenced subliminally. Many scientists, influenced by the prospect of money, have begun to use their knowledge in the service of these goals. Elections are won by marketing and the experts in this field will dance to the tune of the dollar bill.
Thirdly, money is the lifeblood of political campaigning. Senators and Congressman, Governors, Mayors and Legislators spend significant time each day just raising funds. Money always demands a quid pro quo and favors and facetime are dispensed to major contributors thus negatively influencing the governing process.
Fourth, the concept that a Corporation is an entity that has equal rights to a citizen was never envisioned by our Founding Fathers, but is a byproduct of a SCOTUS of the late 19th Century packed with supporters of corporate interests. It is a concept that is harmful to our Republic. To be fair Unions too should not have these same rights, nor should religious institutions. This decision in effect gives all these entities a spurious “right of free speech” and those that talk the loudest will be those with the most funds.
Due to that context this is a disastrous decision and will lead to a Corporate State and the end of the democratic republic that was and is envisioned. One might counter this by saying that the Internet will fill the gap, however, the currency of China as a Fascist State and their Internet information crackdown belies this. Soon “net neutrality” will be an empty term as corporate bought politicians take control.
The concepts of the First Amendment have been basic principles for me for my entire life, once I learned that books by writers like James Joyce, D.H. Lawrence and Henry Miller were not allowed in this country. This passion for “free speech, however, must be put in context. While on the surface “free speech” provides a rationale for this decision, in truth when viewed in context this is not what it’s about. Holding onto a principle that can be viewed in context as dangerous, is a foolish consistency.
Remember this day. For it is the death of American Democracy. Corporations are not people. This talk of first amendment rights for corporations is ridiculous. Each and every person who works for any corporation in America has free speech. There’s no need to extend human rights to utterly manufactured, inhuman, entities.
I complete agreed with Keith Olbermann. I think anyone who disagreed with the basics of what he said will regret it when we become a corporatocracy. The voices of millions of individual Americans has just been silenced. Our freedom of speech is nil because we don’t have the resources of the corporate machine.
SHAME on anyone who supports this. You are supporting the end of America. She will either realize this mistake or die. That’s all there is to it. Goodbye Democracy, I will weep for you as I look for a nice place in Canada or Europe somewhere.
Congratulations corporations, America, she works for you now.
Sorry Byron, but we tried trusting the rabid capitalists and that unbridled capitalism stuff. Reagan’s whole trickle down garbage and GWBush’s entire Presidency were based on that lie. Laisse-faire is a proven failure. Waiting to rely on CEO’s better instincts is how we got into this current economic mess.
Now, I’m a capitalist, but…… I read Atlas Shrugged in the mid-70’s and believed she was right and that what you’re proposing was possible. Despite growing up in a blue collar, fiercely Democrat, Italian/American, Roman Catholic, JFK-loving household, I began voting mostly as a Republican from 1972-92 in support of those beliefs and that idealism. By 1992 it was apparent this was not the case at all.
Greed was everything. During much of the eighties economy was good. It came tumbling down toward the end of the decade with huge debts, deficits, etc. When candidate Clinton suggested it was time for the government to get active for the benefit of non wealthy (his “…a rising tide raises all boats…” theory), what did the uber-capitalists cry for? More of the same. More tax cuts only for businesses and the wealthy. All that greed was too much for me. Not seeing the need to address the plight of the least in our midst was the death knell for respecting the GOP and it’s constant whining for corporate welfare.
Gyges:
exactly, it failed because it didnt get implemented world wide. 🙂
The cpaitalism part of this equation is not the part that is failing. what do you think has been moving us along? it sure hasnt been the governmental part.
we are always going to have poor people for whatever reason and no amount of social engineering is going to change that. Jefferson said something to the effect that you cant build up one man by taking from another.
I say give people their money to use as they see fit and there will be enough money to help people that cannot help themselves.
“It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.” -Federalist 84
Times, they have changed.
jim wrote:
“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.”
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I agree that those are 2 major problems. I was a workaholic, raised a family, and I could not concern myself with detailed political issues then, as I can now that I am retired. I would also agree that it is very difficult for the average family to be inspired to vote given all the pressures of trying to stay afloat in this economy. However, all things democratic evolve/devolve from the electorate, we are the ones to blame or thank for how our system works or fails, and we have to participate and pay now or recompense later and often at a greater price and sacrifice.
Byron–
You’re not responding to the specific points I made about corporate bosses foregoing huge bonuses–and about corporations that would pollute the environment if left to do as they will. A number of corporate heads got bonuses even when their companies’ stocks took nosedives. The main problem is that too many people in business are GREEDY. They only care about themselves and how much money they can make. They’ll always find a way to get as much as they can for themselves–no matter the cost to their country and its citizens…to anybody else. They have an advanced sense of entitlement. It’s an “I got mine…who cares about the other guys” attitude. Greed is good, doncha know???!!!
At least it is for them.
Byron,
And Communism failed because it wasn’t really tried in just the right way?
Elaine:
Didn’t Clinton cap CEO salaries in the early 90’s so they had to pay using stock options? I believe he did just that and look what we have now-stock holders receiving fewer dividends and employees making less money because of high CEO bonuses.
Seems to me that let the market work is good advice. We probably wouldn’t have these huge bonus packages if he had just “left it alone”.
The road to hell is always paved with “noble” dreams.
Air America filed bankruptcy today, just missing the surge in new corporate lucre.
http://www.washingtonpost.com/wp-dyn/content/article/2010/01/21/AR2010012103868.html?hpid=moreheadlines