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, It’s only about what you call these voluntary associations are called under the law. The voluntary association you call a corporation (not an apt description IMO) is recognized as a citizen. It has the same rights to the election funding process as a citizen with the same limits on contributions- DIRECT CONTRIBUTIONS- as citizens. ANY citizen has the right to spend unlimited funds on issues advertisements. Now corporations can do the same thing.
If you, or you and 10 friends wanted to pool a million dollars apiece and make a movie(or take out ads) about an issue you could do that If Ross Poirot wanted to spends 20 million dollars and make a movie (or take out ads) about an issue he could do that. If BOA now wants to spend 150 million dollars and make a movie (or take out ads) on an issue, say bank regulation, it now can based on this decision. The same rules apply because soylent green is people… no, corporations, corporations are citizens with the same rights as any other citizen has regarding access to the funding of candidates and issue ads.
EXACTLY why this is ‘unfair’ at it’s most basic was stated above by Voomba- Voomba, the brevity and clarity of your statement is outstanding:
Voomba
…”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.”
“The severe educational qualification which has been imposed upon the electorate today has done more than merely deprive the voter of the power to vote. It has presented to others the opportunity to direct the voter how to vote and thus in effect to cast his ballot for him. That opportunity has at once been taken advantage of by men who have been quick to perceive the vast political power which the privilege of casting the voter’s ballot for him confers. This combination of opportunity and selfish motive is the complete cause of the passing of a considerable part of the political power of the electorate at large to the few who direct it how to vote.”
“Not only, however, does the political ignorance of the voter present an obvious opportunity to someone to direct him how to vote and thus cast his ballot for him, but an overwhelming self-interest on the part of individuals invokes at once the strongest motive to use the opportunity. The man that can control the power of the electorate will secure the power to appoint to office. He who can regularly place the candidate in office will soon control the holder of the office and exercise the governmental power which the officeholder wields. The securing of such governmental power has always been an object in itself to a proportion of the individuals in every community. When seen as a source of personal profit and advancement, the numbers who will strive for it and the efforts which they will make are greatly increased. Indeed, the prize which the successful secure is such as to produce the keenest competition and the most exhaustive effort.”
“The professional adviser and director to the politically ignorant voter aims to secure control of as much of the power of government as possible. His means to that end consist in becoming the most important single factor in the filling of the offices of the legal government. Success in advising and directing a majority of the politically ignorant voters how to vote places in his hands the power to fill by appointment all offices for which candidates are presented who are unknown to the electorate generally. Our political boss naturally tends to appoint men who are loyal to him and to his power, and by this means he naturally secures a certain control over part of the local governmental power. In the same way, the prize of a combination of successful local bosses is the power to appoint the majority of the officeholders of some more extensive and important local municipal government and thus obtain control of a part of its governmental power. When the state-wide organization of the feudal army of directors and advisers to the politically ignorant voter has been thoroughly perfected, with a man of great ability at its head, the prize to be obtained is the principal part of the entire governmental power, whether state or local. More and more such an organization will fill with men loyal to its leaders the local and state legislative bodies, the local and state executive offices, and even places upon the bench. Such an organization, when continuously successful for any length of time, will have actually filled all of the less conspicuous and less important offices in the executive, legislative, and judicial departments of the state and local governments.”
Albert Kales “Unpopular Government in the United States” 1913
The public has been told how to vote for over 100 years. The only thing that has changed are the faces of those instructing the voters.
Gyges sed:
“You don’t loose your right to free speech because your company can’t lie in an advertisement.”
Likewise, I wouldn’t lose my free speech rights, if all non-citizens were denied that right.
Does that mean I shouldn’t care about the denial of that right, because it doesn’t affect me?
Byron: “aren’t corporations voluntary associations of individuals? So don’t corporate rights derive from the individuals engaging in this voluntary association?”
Corporations are strictly creatures of statute; i.e. owing their entire (possible perpetual) existence to the body of state law creating them. As such, unlike mankind, they have no inalienable rights and are therefore not parties to the social compact.
Byron: “Dont partnerships and LLC’s offer the same limited liability as corporations?”
Partnerships offer no limited liability; all partners are equally personally liable for acts of the partnership and the (business related) acts of other partners. C.f. Limited partnerships. Distinguishing LLC’s from corporations would take a bit more time than I’d like to spend at this moment.
Byron: “Wouldn’t an argument against corporations also be an argument against partnerships and other limited liability vehicles?”
Just to keep it clear in your head, try thinking of partnerships as a bunch of sole proprietors bound by blood. NO LIMITED LIABILITY.
Byron: “And since individuals set these instruments up, isnt what you and others are proposing actually/ultimately a denial of individual liberty?”
Again, the founders did not set up this republic based upon the social compact with legal fictions in mind as parties to said compact. The main theme going through their minds, if you were to put in in a few words, was ‘no oppression/tyranny’.
Only John Yoo would argue that the Founders envisioned corporate empires wielding their great financial influence so as to stifle the will of the people.
Gyges:
“One word: Inalienable.”
so you would deny me my right to join the group of my choice? So my right to free association is limited?
Gyges:
do I need to? A group is made up of individuals, how do you deny rights to a group and not end up denying rights to the individuals who make up the group?
Please help me understand why denying rights to a group is not denying rights to the individuals who make up the group.
Byron,
One word: Inalienable.
Also, you have yet to prove that the lack of rights of a group as an entity is equivalent to a lack of individual rights. You don’t loose your right to free speech because your company can’t lie in an advertisement.
rcampbell:
we still do limit contributions directly to politicians, this decision doesn’t change campaign contributions or am I missing something?
Obviously if a company says I like Rep. Smith over Rep. Jones it is money Smith doesn’t have to spend. But what if you are Smith and you don’t want the XYZ Corp running an ad for you because they are in bed with Dolphin killers and your constituents are all environmentalists?
I imagine this can cut both ways, and the people will ultimately make up their own minds. Which is at it should be in my opinion.
If my congressman was being endorsed by GE I would not vote for him, but there will be people who will because he is supported by GE. Overall this seems to me to be an increase in freedom rather than a diminution.
Byron, This is quite simple. No business entity is a person. No such non-persons are entitled to vote and therefore should not be contributing to any political campaign. No exeptions, no equivocating. NO CONTRIBUTIONS are approriate except from humans. We do this with religious and we can pefectly legally do the same to business entities.
Gyges:
Some communes do accept responsibility for raising children. But then isn’t free association an individual right? And isn’t a commune made up of individuals?
If you want to divest yourself of those rights and have the commune raise your son, isn’t that your individual right?
Byron,
Let’s say that I join a commune, and my wife and son come with me. Would the rest of the commune suddenly gain parental rights regarding my son? If not, does that mean I’ve lost my parental rights?
The individual is not the group.
“The moral core of the essays [The Federalist Papers] was that simple majority rule was dangerous because it could easily lead to oppression of minorities. This was not, as some have claimed, a desire to protect the wealthy few from the impoverished masses.
In his most famous essay, Federalist 10, Madison declared that the most “common and durable” reason that society will ever be segmented is economic—“the various and unequal distribution of property.” People’s interests vary depending on whether they are debtors or creditors; farmers, manufacturers, and bankers, affected differently by various tax and trade policies, will always be at odds over the proper path for the government to follow.
But in his discussion of the causes of factions, Madison explored many aspects of the human condition apart from the merely financial. In fact, he began his analysis with the simple observation that mortal man is “fallible.” Since fallible people will inevitably make errors, he said, subsequent disagreements as to wisdom and truth are equally inevitable.”
Taken from an excellent essay entitled “Disrespecting the Federalist Papers”.
http://hnn.us/articles/49975.html
Bob Esq:
aren’t corporations voluntary associations of individuals? So don’t corporate rights derive from the individuals engaging in this voluntary association? Dont partnerships and LLC’s offer the same limited liability as corporations? Wouldn’t an argument against corporations also be an argument against partnerships and other limited liability vehicles? And since individuals set these instruments up, isnt what you and others are proposing actually/ultimately a denial of individual liberty?
These are some of the questions that I have as I do a little research on your question.
Other than corporations, are there any other entities whose speach is restricted?
Why didn’t anybody find anything wrong with this?
[youtube=http://www.youtube.com/watch?v=Iv6kabHxoQI&hl=en_US&fs=1&]
The air will become even more polluted in this country as the utility companies and cement companies try to bribe officials to allow them to pollute. With respect to bribing I mean supporting candidates with offers of campaign money if they allow them to pollute. Also in red states where union members are few and far between the unions will not be able to counter balance the utility and energy companies with campaign workers.
We the corporation, in order to form a more perfect board of directors….
I looked through the Declaration of Independence and the Constitution and didn’t find the above nor did I find ANY mention of corporations. People? Yeah, saw that many times, but not corporations.
This makes the position of those two perjurers to Congress, Alito and Roberts, all the more puzzling as they both told Congress–under oath–they believed the Constitution should be taken literally and strictly enforced. Lying corporatist bastards.
rcampbell,
My problem is that many see this as a Republican takeover. The corporate influence has been to the benefit of both parties. In the last PResidential Election, it was Obama that appears to be the one who benefitted more. Union involvement is just as bad as corporate involvement.
The only saving grace I see from the Court’s decision is disclosure. If Wal-Mart buys candidate A, both Wal-Mart and candidate A will be linked together. When the majority speaks, it will also speak to the corporation. I think that will hold them accountable.
This play for pay scheme has been around for 100 years, if not more. The name Pendergast is one that I recall.
Byron: “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?”
Free speech for corporations have been recognized/created for years; e.g. how else would you have a case called Times v. Sullivan?
Byron: “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.”
The difference comes down to the corruption of the framer’s playing field with the power shift resulting from extending the legal fiction to deem corporations as equivalent to mankind with natural rights.
Sovereignty rests with the people, land of the States and then the Fed; both Hamilton and Jefferson would agree that corporations were never part of the equation.
Duh
What’s your point? Not many here care whether Obama or McCain raised more corporate dollars. It’s ALL bad. The problem is that ANY dollars must be raised and that the Supremes just upped the ante for both parties and elections from municipal to federal.