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.
FF LEO–
“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.”
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I’m retired too–and have more time to do my “political” homework. Even still…I find it difficult. I think the fourth estate isn’t doing a very good job. There are still “real” journalists–but I think they are a minority. I believe we’re seeing the effects of corporate-controlled media for the most part. I think we have lots of journalists and members of the TV news media who socialize in the same circles as politicians and corporate leaders. We have news programs with “blathering” heads talking about insignificant crap–like the gossip in GAME CHANGE and whether or not President Obama is really an American citizen–while our country is involved in two wars and millions of Americans are out of work and losing their homes and health insurance. We have political pundits like Liz Cheney and Republican and Democratic strategists just spouting off talking points on TV. We have David Gregory emailing Governor Sanford to tell him “coming on Meet The Press allows you to frame the conversation as you really want to.” We have fewer and fewer newspapers–and existing newspapers closing down their offices in foreign countries.
I think it’s becoming more and more difficult for the electorate to get the truth and the real news. I wish I could be more hopeful about what’s going on in this country.
“AP
Obama & Biden Button
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If dollars translate into votes then tech’s top companies are squarely behind Barack Obama, by a better than 5 to 1 margin if you believe the Center for Responsive Politics and its latest stats on the issue.
The group put together donation records for some of the top companies in Silicon Valley and the numbers are striking. Overall, Obama outraised John McCain $1,434,719 to $267,041. Google was Obama’s single biggest corporate donor, racking up $485,961 in donations, compared to only $20,600 for John McCain. It’s no accident that Google is Obama’s top donor, especially with a high profile endorsement by Google CEO Eric Schmidt, who appeared in the candidate’s infomercial recently. As for McCain’s biggest corporate donor? That’d be Cisco Systems where CEO John Chambers is a vocal supporter of McCain as a co-chairman of his campaign. Employees there forked over $80,676 to McCain. But those donations still didn’t measure up to the $149,078 Cisco employees also sent Obama’s way.”
http://www.cnbc.com/id/27537699
Voomba
Many good points. You mentioned, as have others, that corporations are comprised of people. Some, including the SCOTUS see this as a partial justification for this outrageous ruling. This line of thought avoids two realities.
The first is that the make up of corporations is not exclusely human. Hedge funds, charities, UNION PENSION FUNDS, and other corporate entities are shareholders of corporations. So, in some cases, a corporation could quite easily influence an election several times over where we mere mortals–and non-Republicans–get one vote. The GOP loves that.
The second point is that chruches/synagogues/mosques are also made up of humans and we have laws on the books, at least for the time being, that ban direct political contributions to candidates. There NO reason we can’t do the same with corporate/union contributions.
I submit we’d better get to the business of limiting contributions to exclusely human or ban all contributions and require federally funded campaigns before the perjurers before Congress, Roberts and Alito change the above as well. Either of these would require a Constitutional Amendment, but there may be enough outrage from this moronic decision to propel such an effort.
Otherwise, this is confirmation that we as citizens, as people don’t matter any longer. This is not democracy, it’s corporatocracy and the GOP is revelling in it. What does that tell you about where humans fit in the scope of GOP priorities?
I can’t figure out how a rational person could indentify with such an anti-American citizen group so bound on destroying the foundations of this country. They’re are malicious bloodsuckers who care nothing about America except as consumers.
Byron–
I think corporations should have freedom of speech. What concerns me so much is that the freedom is equated with use of unlimited amounts of money. How can ordinary citizens compete with corporations that have millions of dollars to spend on elections to help their chosen candidates win?
Bob Esq:
“Where in the framework of the Republic, much less the social compact, do legal fictions such as “corporations” trace their rights to and what specifically enumerated power in the Constitution empowered the Fed to deem them “persons?”
I am doing research on this and I am trying to figure out the genesis of the “legal fiction” and it’s implications to this case. It is probably going to take awhile for me to figure this out, not being a lawyer.
A question for you: if corporations cannot engage in free speech can any group of people, like unions or a trade association for example or a charitable orginization or the RCC? What would the difference be? Or what if a 1000 people formed the Organization of Concerned Myopics and started running poltical ads? I dont see one on a purely philosophical level.
AY–
I have never set foot inside a Walmart store–and I never plan to in the future.
Byron–
A lot of big American corporations import and make tons of money off of products made by slave laborers in third world countries. You don’t think they bear any responsibility for the inhumane treatment of the children and adults who make these products? Do you think the heads of these corporations aren’t aware of where the goods are coming from? In addition, many of these companies closed plants in the US and moved their manufacturing to countries where there is cheap/slave labor. It means a bigger margin of profit for them. So what if they put millions of Americans out of work. I think the US is well on its way to becoming a third world country.
Bryon,
I do not shop at Wal-Mart. I avoid them. I go to Albertson, TomThumb, Krogers or HEB.
If enough of us quit shopping at walmart they would not see the need to build.
I am not for child labor unless they want to work. This is not 1905 nor is it Pakistan. Selling someone into slavery is by all civilized measure barbaric. Making children work 12 hours a day or more is barbaric. these atrocities happen in countries with little political or economic freedom, in fact most are what you would call command economies.
I dont buy Nike shoes and I only buy stuff like shampoo and shaving cream at Wal-Mart.
Elaine:
and Pakistan is a pretty backward country for the most part and not politically or economically free. China is not a free country either, I don’t have time to do a search and see where all the child labor is but I am seeing a trend with those 2 countries, assuming of course there is child labor in China.
Economic (Capitalism) and political freedom go a long way toward eradicating child labor and slavery.
lottakatz–
“Child labor in tune with your original statement meant/means child labor (kids starting at 5-6 yrs old) like child miners in most of the third worlds, children sorting through electronic parts while squatting next to or in puddles of hazardous chemical runoff in open dumps/reclamation centers in China, child weavers sitting over carpet looms 10 hours a day in the Middle East, piece-work fabrication of hard and soft products (Remember NIKE?) and just about doing every odious, dangerous job most everywhere that there aren’t strong laws enforced to prevent it. Just sayn’.”
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I’m with you on this one. We even have places in our own country where people work as slave laborers.
Corporate “persons” shouldn’t get the same scope of Constitutional benefits afforded to human persons. Corporations should never be allowed to vote in elections. They shouldn’t become eligible to run for President upon reaching age 35.
Since all corporations are run by humans, this decision gives a new second voice to those few humans who run corporations. Now, people (as in “of the People, by the People, for the People”) are separated into two unequal classes: those with two political voices, and those with only one.
Government regulation of commercial speech by corporations has been upheld as constitutionally sound, and commercial activity is the primary purpose of corporations.
It defies common sense to treat political speech by corporations, which is purportedly far from central to their purpose, as somehow untouchable by government.
Question for Byron:
Where in the framework of the Republic, much less the social compact, do legal fictions such as “corporations” trace their rights to and what specifically enumerated power in the Constitution empowered the Fed to deem them “persons?”
Ok, D to B.
Got ya……You keep posting and I’ll do the trolling. I think ts safer that way. Not as inflamed.
Just remember to focus and stay on the topic. You are doing better. Troll Savant.
Byron–
You can’t compare the caddying, mowing of lawns, and working in a restaurant that you did when you were to make money for movies and hamburgers to what these child slave laborers are required to do.
From Child Labor Coalition
For Teen Workers and Students
Iqbal Masih
Third Anniversary of the Murder of Iqbal Masih, Pakistani Child Activist (1983-1995)
Iqbal Masih Remembered
WASHINGTON, D. C. (April 15, 1998) Iqbal Masih made a difference. His was the voice of a child pointing out to adults the horrible costs and injustices of child slavery. Twelve years old and one of the mightiest voices in Pakistan against child labor, Iqbal was a compelling survivor of slavery in Pakistan’s carpet industry.
For half of his life, Iqbal was bonded in the hand-knotted carpet industry. Enslaved at the age of four, for an advance of less than $16 to his parents, he was chained to his loom, tying tiny knots for twelve hours a day, every day. Six years later, when he confronted his boss demanding his freedom, the debt he owed had risen to $419.
Iqbal’s slavery is not unusual in a country where estimates of bonded child labor run as high as eight million. At least half a million children are bonded to the carpet industry. Although outlawed in 1992, under Pakistan’s Bonded Labor Abolition Act, the “advance” system that bonds people — and often entire families or generations of families — to their employers continues.
Receiving international attention as the recipient of the 1994 Reebok Youth In Action Award, Iqbal was known as a champion for bonded children. He was the president of the youth wing of the Bonded Labor Liberation Front (BLLF) in Pakistan, helping to free hundreds of children from slavery over the last two years of his life.
You can read the rest of the article about about Iqbal at the following link:
http://www.stopchildlabor.org/teensandstudents/iqbal.htm
Pegi Dietz Shea wrote a children’s book about Iqbal titled “The Carpet Boy’s Gift.”
[youtube=http://www.youtube.com/watch?v=bLxtkxdtTos&hl=en_US&fs=1&]
Rachel Maddow Explores Big Business Ignoring Slavery & Child Labor
[youtube=http://www.youtube.com/watch?v=xAmZR8Xnrvg&hl=en_US&fs=1&]
lottakatz,
In the context of the scenarios that you presented, I agree completely.
Byron, we’re talking about two entirely different things. You’re talking spare change in modern America now but you started off talking about coal mines. I worked as a child, running errands and doing ironing and housecleaning with my mother.
Child labor in tune with your original statement meant/means child labor (kids starting at 5-6 yrs old) like child miners in most of the third worlds, children sorting through electronic parts while squatting next to or in puddles of hazardous chemical runoff in open dumps/reclamation centers in China, child weavers sitting over carpet looms 10 hours a day in the Middle East, piece-work fabrication of hard and soft products (Remember NIKE?) and just about doing every odious, dangerous job most everywhere that there aren’t strong laws enforced to prevent it. Just sayn’.
Byron,
At the age of 11 or so, I remember looking forward to winter snow storms. More than the day off of school, I would go around the neighborhood and shovel driveways. My little brother (who is now an attorney) took it one step further. At age 13, he had saved enough to purchase a snowblower. That’s capitalism at its finest.
AY,
Please quit acting like a troll. If you have something to add to the discussion, please do so. If you’re just trying to flame the fire, go back to sleep.
Troll; a troll is someone who posts inflammatory, extraneous, or off-topic messages in an online community, such as an online discussion forum, chat room or blog, with the primary intent of provoking other users into an emotional response or of otherwise disrupting normal on-topic discussion.
Lotta:
I would not personally have children work in a coal mine, it is not work for children. As far as child labor goes, I worked in restaurants starting in 7th grade and cut lawns and caddied in 5, 6, and 7. Not 40 hours a week but enough so that I know that work like that isn’t so bad if you need the money. It didn’t hurt me either and provided me with money to go to movies and buy a bike or go grab a hamburger.
Having a child of around 11 or 12 in a third world country working and possibly learning a trade is not necessarily a bad thing for the child or the family of the child.