It's anticipated that the Supreme Court of the United States will be handing down its long-awaited opinion in Citizens United v. Federal Election Commission tomorrow morning.
Because of the imminence of this decision, I wanted to take a moment today to link back to my two earlier stories on the case, to refresh your memories and so I can minimize the time on background tomorrow. (Also, to answer any questions you may have.)
Meet Citizens United. It's a Virginia-based conservative group -- legally, organized as a nonprofit corporation -- that in 2007 and 2008 wanted to tell Americans one simple message: Hillary Clinton is a bad person. And so, much like Michael Moore but in reverse, they produced a 90-minute documentary titled "Hillary: The Movie," which informs the public of various commentators' views that:
"She’s driven by the power. She’s driven to get the power. That is the driving force in her life."
"If she reverts to form, Hillary Clinton will likely be in the future what she has been in the past, which is a person, a woman, a politician of the left, and I don't think that's going to [be] good for the security of the United States."
"I think we are at a very critical time in this country. I can tell you beyond a shadow of a doubt that uh, the Hillary Clinton that I know is not equipped, not qualified to be our commander in chief."
Indeed, the documentary features people saying every vile thing you'd expect about Hillary Clinton except one: no one explicitly says don't vote for her.
Citizen's United managed to get the film into a few theaters, is now selling it on DVD and via on-demand. It wanted to advertise all this last January ... at which point, the Federal Election Commission said whoa. Because you may recall there was a series of primary elections going on at the time, and a provision of the Bipartisan Campaign Reform Act (BCRA, a/k/a "McCain-Feingold") forbids corporations and labor unions from using general treasury funds to finance communications that even mention a candidate for President or Congress within 30 days of a primary or 60 days of the general election. And even as to communications outside such time windows, there are disclaimer and disclosure requirements.
B. How did oral argument go? Badly, from the FEC's perspective, both times. The first time, Malcolm Stewart advanced a disturbing position for the FEC:
JUSTICE ALITO: You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?
MR. STEWART: I'm not saying it could be banned. I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.
JUSTICE ALITO: Well, most publishers are corporations. And a -- a publisher that is a corporation could be prohibited from selling a book?
MR. STEWART: Well, of course, the statute contains its own media exemption or media --
JUSTICE ALITO: I'm not asking what the statute says. The government's position is that the First Amendment allows the banning of a book if it's published by a corporation?
MR. STEWART: Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right. That question is obviously not presented here. The -- the other two things --
JUSTICE KENNEDY: Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/90-day period -- the 60/30-day period?
MR. STEWART: If the book contained the functional equivalent of express advocacy. That is, if it was subject to no reasonable interpretation --
JUSTICE KENNEDY: And I suppose it could even -- is it the Kindle where you can read a book? I take it that's from a satellite. So the existing statute would probably prohibit that under your view?
MR. STEWART: Well, the statute applies to cable, satellite, and broadcast communications. And the Court in McConnell has addressed the --
JUSTICE KENNEDY: Just to make it clear, it's the government's position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite, it's under -- it can be prohibited under the Constitution and perhaps under this statute?
MR. STEWART: It -- it can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use -- to raise funds to publish the book using its PAC.
CHIEF JUSTICE ROBERTS: If it has one name, one use of the candidate's name, it would be covered, correct?
MR. STEWART: That's correct.
CHIEF JUSTICE ROBERTS: If it's a 500-page book, and at the end it says, and so vote for X, the government could ban that?
MR. STEWART: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provisions.
The second time upon reargument in September:
That lineup has always put the focus, as the Court volunteered to take on new constitutional questions in the Citizens United case, on the Chief Justice and Justice Alito. While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections. None of those arguments seemed to appeal to either Roberts or Alito....
Stevens and Ginsburg continually pressed for a narrow ruling, perhaps allowing Citizens United free rein to distribute the "Hillary" movie and relaxing curbs on other non-profit corporations. Stevens openly touted a brief filed by the National Rifle Association, which proposed — as an alternative to overruling the two precedents — that corportions that get their funding entirely from individual donors be exempted from the spending curbs. Ginsburg used many of her questions and comments to argue strenuously for treating corporations differently from individuals in political expression. She remarked: "A corporation, after all, is not endowed by its creator with inalienable rights."
Justice Breyer commented several times how important it was for the Court to defer to Congress’s judgment about what is necessary to insulate federal politics from wrongful influences. What, he asked rhetorically, should the Court do about the reality that "people think that their Representatives are being bought"? Wasn’t that a sufficient interest to justify the restrictions, he wondered. Breyer also questioned whether a ruling all.owing corporate political spending would give businesses more influence in politics than political parties have, because of limits on their campaign financing.
Though Justice Sotomayor had a question which will intrigue many here:
Going back to the question of stare decisis, the one thing that is very interesting about this area of law for the last 100 years is the active involvement of both State and Federal legislatures in trying to find that balance between the interest of protecting in their views how the electoral process should proceed and the interests of the First Amendment.
And so my question to you is, once we say they can't, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.
C. So what's the Court likely to do? Say something like what Justice Scalia said in dissent (with Justice Kennedy in the Austin case twenty years ago:
Perhaps the Michigan law before us here has an unqualifiedly noble objective - to "equalize" the political debate by preventing disproportionate expression of corporations' points of view. But governmental abridgment of liberty is always undertaken with the very best of announced objectives (dictators promise to bring order, not tyranny), and often with the very best of genuinely intended objectives (zealous policemen conduct unlawful searches in order to put dangerous felons behind bars). The premise of our Bill of Rights, however, is that there are some things - even some seemingly desirable things - that government cannot be trusted to do. The very first of these is establishing the restrictions upon speech that will assure "fair" political debate. The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition. Perhaps the Michigan Legislature was genuinely trying to assure a "balanced" presentation of political views; on the other hand, perhaps it was trying to give unincorporated unions (a not insubstantial force in Michigan) political advantage over major employers. Or perhaps it was trying to assure a "balanced" presentation because it knows that with evenly balanced speech incumbent officeholders generally win. The fundamental approach of the First Amendment, I had always thought, was to assume the worst, and to rule the regulation of political speech "for fairness' sake" simply out of bounds.
I doubt that those who framed and adopted the First Amendment would agree that avoiding the New Corruption, that is, calibrating political speech to the degree of public opinion that supports it, is even a desirable objective, much less one that is important enough to qualify as a compelling state interest. Those Founders designed, of course, a system in which popular ideas would ultimately prevail; but also, through the First Amendment, a system in which true ideas could readily become popular. For the latter purpose, the calibration that the Court today endorses is precisely backwards: To the extent a valid proposition has scant public support, it should have wider rather than narrower public circulation. I am confident, in other words, that Jefferson and Madison would not have sat at these controls; but if they did, they would have turned them in the opposite direction.
D. But corporations aren't people!
Sure, but the First Amendment's freedom of speech clause isn't limited to people, though the assembly and petition clauses are. (Other amendments are limited to "citizens," for what it's worth.) One need not recognize corporations as "people" to respect their speech as "speech" which the First Amendment forbids Congress from interdicting without a compelling state interest.
The AFL-CIO is a corporation. So's the ACLU. Both support Citizens United in this litigation.
E. And is this the end of the world?
Not necessarily, but there will be a real potential for corporate-funded advocacy to distort the current market for political speech. And we'll talk about that as well as ways to balance against it.
What's not at issue, by the way, are direct corporate financial contributions to candidates for public office -- currently illegal under federal law, but legal in a good number of states. That's another potential battle years down the road.