I finally got a chance to read one of the biggest decisions handed down by the Supreme Court in the last few years. Citizens United v. the Federal Elections Commission was decided waaay back in January 2010, but its impact will be apparent to almost everyone real soon. I thought I’d dust off and put on my legal scholar hat and share some of my reactions to the court’s text.
First, here’s my attempt to summarize First Amendment law for everybody in an oversimplified way: the Court has interpreted the First Amendment to mean the government cannot ban speech altogether, but can regulate it if the government can find a really, really good reason to do so. Back in the 1970s, the Court ruled that giving money to someone is a form of expression. So using your voice to say “Vote for Smith,” writing an email saying “Vote for Smith,” and giving Smith’s campaign $500 are all protected speech. Many campaign finance laws are an attempt to regulate these donations. Any regulation imposes some limit on the freedom of speech associated with the donation. In the Citizens United case the Supreme Court again looks at these regulations.
On a side note, don’t you just love how organizations can just name themselves anything to disguise their real intent? “Citizens United” sounds like a nice group of good old American folk who are working together to promote … well, I guess, citizens. In fact it is a conservative advocacy group headed by Floyd G. Brown, the guy who brought us the Willie Horton ad. According to Political Research Associates, itself having a neutral sounding name but at least with a bias-disclosing subheader “Researching the Right for Progressive Changemakers,” Citizens United is basically a clearinghouse for Clinton-bashing.
On to the case, at issue the regulations impeding Citizen United’s spread of Hillary The Movie. Below are some quotes from the Court’s opinions to give you some background and a taste of their “analysis.”
Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. Limits on electioneering communications were upheld in McConnell v. FEC. The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce. Austin had held that political speech may be banned based on the speaker’s corporate identity.
In this case we are asked to reconsider Austin and, in effect, McConnell. It has been noted that “Austin was a significant departure from ancient First Amendment principles.” We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. We turn to the case now before us.
Stare decisis is a traditional rule that says the Court must find a really good reason before changing its mind on an issue they already decided. Playing loose with stare decisis leads to the accusation of being an activist court. The majority opinion of the court spends pages explaining its rationale for throwing stare decisis overboard in the Citizens United case. They seem to have more important principles guiding them than the integrity of the legal system.
The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.
Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations.
PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”
So any limit on speech that requires a corporation to speak indirectly through a PAC is unconstitutional? Are they aware that it is impossible for a corporation to speak directly? Any expression is done through the activities of actual humans (its employees or other agents). Is the speech somehow less effective if done through a PAC? The court mentions that it is burdensome to run through a PAC. I’m sure multinational corporations, that already comply with more extensive regulations than a PAC, could handle this burden. In fact, one could argue we should strike down the ‘ban’ because funneling corporate campaign money through a PAC is so easy why should we bother with a regulation that impedes “speech”?}
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. (“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential”). For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.”
Speech is how people can hold officials accountable. It almost sounds like the people are important. Now, one could argue allowing corporations to have unlimited speech rights would, by allowing corporations to participate more in our democracy, provide the people with more information to hold the leaders accountable. But the Court does not want to just protect corporate speech as an indirect tool of the people, the Court wants corporations to be equal to people — because as the Constitution states, “We the People and Corporations.”
Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.
This is where the court opens the door to some weird results. Now, I usually despise slippery-slope arguments, but if the “First Amendment protects speech and speaker,” by the court’s reasoning, doesn’t that bestow rights on anyone or anything that can produce speech? This could go from the plausible to the ridiculous: foreign governments can “speak” with campaign funds, are they protected? Parrots can speak; are their First Amendment right protected? Creepy Japanese robots can speak; are their First Amendment rights protected?
By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes. At least before Austin , the Court had not allowed the exclusion of a class of speakers from the general public dialogue.
The court is bending over backwards to come down on the side of corporations. It used to be that people had rights. Now the court wants us to believe that rights exist floating all around us in the air and are protected when used by anything. The court wants us to believe the core interest of the First Amendment is protecting the pool of information available to voters. I don’t think there is such a dearth of information, especially in the age of the Internet, to use this reasoning to prevent the government from attempting to limit the corrupting influence of corporate wealth in federal elections.
We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion. Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” (“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster”). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”
Really?!! Are we going to have to pass a Human Rights Amendment so we don’t have to put up with this nonsense?
By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.
The Court’s majority is getting close to transparent here about whose interests they really want to protect.
When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: “Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.”
I guess the majority has no problem with disproportionate and undue influence.
The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.
The electorate may not lose faith, but it will lose control of our democracy.
That’s enough of Citizens United for one day. I’m surprised I made it this far without my head exploding. Maybe I’ll follow up with more in a future post, but I think you all get the point.
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Willard