Cross Posted from The Albany Project
This is Part V of a series on the Citizens United v FEC decision.
Part I can be found here.
Part II can be found here.
Part III can be found here.
Part IV can be found here.
Part V can be found here.
Employment as a precursor to income as a precursor to eating as a precursor to speech. Corporations as a precursor to all of that. What could possibly be next?
Austin ’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. See McConnell , 540 U. S., at 283 (opinion of THOMAS, J. ) ("The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press"). Cf. Tornillo , 418 U. S., at 250 (alleging the existence of "vast accumulations of unreviewable power in the modern media empires").
Banning political speech of media corporations would be a bad thing. I agree completely. Next sentence please.
Media corporations are now exempt from §441b’s ban on corporate expenditures. See 2 U. S. C. §§431(9)(B)(i).
Media corporations are specifically exempt from the regulations in 441b. It appears that the court agrees with the legislatures position. A position that has virtually nothing to do with this case even if they were in disagreement about it.
Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have "immense aggregations of wealth," and the views expressed by media corporations often "have little or no correlation to the public’s support" for those views. Austin , 494 U. S., at 660. Thus, under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment .
Despite the fact that we are in agreement about an explicit exemption for media corporations that recognizes they are different from other corporations we’re going to point out the ways in which they are like other corporations and then use the "Government’s reasoning" (except for the part where they exempt media corporations) to point out how this regulation of non-media corporations could be used to regulate media corporations if they didn’t already explicitly exclude media corporations from their regulations. Then we will conclude that the 1st Amendment would outlaw this thing that explicitly doesn’t exist.
But wait! There’s more!
The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Id. , at 691 ( SCALIA, J. , dissenting)
Except of course for that pesky little 1st Amendment we’ve been discussing which explicitly protects "the press" while not mentioning any other corporations at all. For that matter, no part of the Constitution mentions corporate rights. Those get designated and assigned by later Acts of Congress.
With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.
Good point. Hope they keep it in mind when considering Net Neutrality issues. But what does broadcast medium have to do with corporate definitions and regulations? That’s what is at issue here not different technologies.
The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale.
Really? They have the beginning of a point here but not a fully acceptable one. Particularly in light of the 1st Amendment’s recognition of the press as a unique entity. If the law had multiple exceptions for different varieties of corporations or if the government simply asserted in oral argument that they wouldn’t apply a law without exceptions to media corporations rather than having an explicitly written exception then they would have a solid point but that is far from being the case here. 441b accounts for a specific exemption based on a clause of the 1st Amendment. Turning such a recognition into a problem is a rhetorical twist of yogic proportions.
The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news. So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment .
Ah! So the problem is that we can’t trust what the media says because they are owned by corporations whose primary business is something else. Got it. Thanks. Sounds like an excellent reason for strict regulation of corporate ownership of media companies in order to ensure their independence as clearly desired by the 1st Amendment call for freedom of the press. It does not sound like a good reason to ignore an explicit exemption designed to "square with the 1st Amendment" and rule that a law that doesn’t restrict the press is unconstitutional because it would restrict the press if it didn’t explicitly not restrict the press.
It is important to scrutinize laws (and rulings) to see what their implications might be outside of the specific case at hand but ignoring what the law or ruling actually says in the process is not a valid path of reasoning.
There is simply no support for the view that the First Amendment , as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. See McIntyre v. Ohio Elections Comm’n , 514 U. S. 334, 360–361 (1995) ( THOMAS , J., concurring in judgment).
And they go on and on and on regarding media suppression that doesn’t exist in this law. But it is good to see them explicitly acknowledge here that the Framers may not have anticipated modern business. Pretty much undermines Scalia’s snide separate opinion.
From this they move on to the effects of censorship. It certainly is nice to see radical right wing judges so concerned for free speech.
The censorship we now confront is vast in its reach. The Government has "muffle[d] the voices that best represent the most significant segments of the economy." McConnell, supra, at 257–258 (opinion of SCALIA, J. ). And "the electorate [has been] deprived of information, knowledge and opinion vital to its function." CIO , 335 U. S., at 144 (Rutledge, J., concurring in result). 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. Factions will necessarily form in our Republic, but the remedy of "destroying the liberty" of some factions is "worse than the disease." The Federalist No. 10, p. 130 (B. Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid. , and by entrusting the people to judge what is true and what is false.
A corporations purpose is to make money for its shareholders. This has traditionally been done by providing products or services of some sort within the economy. Corporations have expertise in their fields, their "segments of the economy." Corporations have virtually unlimited ability to speak on these topics at any time and in any place they choose. We are inundated with their speech on the topics of import to them.
What corporations are not allowed to do is advocate that we vote for or against candidates that the corporations themselves cannot vote for or against since they are fictitious entities and not actual citizens of the nation. The idea at the end of this paragraph that for profit corporations are equivalent to "factions" as discussed in Federalist #10 is trite nonsense. Political parties are factions. The various categories of non-profit corporations that are formed for specific political purposes (and subject to different rules and regulations that these ones) along with all the social organizations and PAC’s, etc. fall into the category one might describe as "factions" but for profit corporations are apolitical economic constructions. They are indeed associations as asserted but they are associations with a very specific, non-political purpose made up of people, shareholders, spanning the range of political views, including those of foreign nationals specifically excluded from participating in our American political system.
Next, in order to argue that corporations voices are muffled they say
Corporate executives and employees counsel Members of Congress and Presidential administrations on many issues, as a matter of routine and often in private. An amici brief filed on behalf of Montana and 25 other States notes that lobbying and corporate communications with elected officials occur on a regular basis.
This is evidence of "muffled," "banned," or "censored" speech? And in a particularly nonsensical twist they follow by saying:
When that phenomenon is coupled with §441b, the result is that smaller or nonprofit corporations cannot raise a voice to object when other corporations, including those with vast wealth, are cooperating with the Government.
Their solution to this problem is to remove all restrictions from those corporate entities with "vast wealth" with which "smaller or nonprofit corporations cannot raise a voice to object" when they are drowned out or excluded from government consultation. Even private citizens can meet with their representatives. That their voices may not be taken as seriously as that of a Fortune 500 CEO is a sad fact but it is not solved by giving the voice of that Fortune 500 CEO even more leverage over the political discussion. They then throw a strawman at us.
That cooperation may sometimes be voluntary, or it may be at the demand of a Government official who uses his or her authority, influence, and power to threaten corporations to support the Government’s policies. Those kinds of interactions are often unknown and unseen. The speech that §441b forbids, though, is public, and all can judge its content and purpose. References to massive corporate treasuries should not mask the real operation of this law. Rhetoric ought not obscure reality.
Oh, hooey. The problem here isn’t government officials corrupting and coercing corporate executives it is exactly the opposite. Certainly such discussions should happen in public but that would support an argument that Dick Cheney’s Energy Commission meeting participants should have been made public in order to stop such backroom dealing. Giving corporations dominate influence over the political arena does nothing to eliminate backroom dealing or corruption whether of government officials by corporate money or corporations by government officials. That is a disclosure issue similar to the ones upheld by the court in this case. "Rhetoric ought not obscure reality."
And again,
Even if §441b’s expenditure ban were constitutional, wealthy corporations could still lobby elected officials, although smaller corporations may not have the resources to do so.
Which they solve by giving the wealthy corporations yet another avenue to overwhelm the smaller corporation without matching resources. Did these guys even read their own argument?
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
That sounds really good but rhetoric really ought not obscure reality. I know one thing and that is that after reading the "reasoning" and "logic" presented in this opinion I will not be trusting these guys as a source of good information.