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.
[This area of the law starts with Austin v. Michigan Chamber of Commerce, a 1990 case which found constitutional a state's restrictions on the use of corporate treasury funds to directly advocate a candidate for election. In an opinion authored by Justice Thurgood Marshall and joined by, among others, Chief Justice Rehqnuist and still-Justice Stevens, the Court held that "the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption" such that "resources amassed in the economic marketplace [could be used to obtain] an unfair advantage in the political marketplace" because, as the Court has noted: "[t]he resources in the treasury of a business corporation . . . are not an indication of popular support for the corporation's political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas."]
You may recall that two years ago, the Supreme Court in Wisconsin Right to Life v FEC restricted BCRA's time window rules to include only those ads which explicitly called on viewers to vote for/vote against the named candidate. But with "Hillary: The Movie," said the FEC, there was no way to understand the movie as anything other than a message that Sen. Clinton was unfit for office and that viewers of the movie should vote against her. And as for why you should care, follow this exchange during the Supreme Court oral argument with the attorney representing the FEC, Malcolm Stewart:
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.
All of which constitutes a lengthy prelude to today's decision of the Supreme Court to ...
... oh, boy ...
... hold the case over for reargument to determine whether Austin v. Michigan Chamber of Commerce should just be overruled. In other words, whether there's just no viable or enforceable legislative line to draw between permissible corporate-funded speech on public affairs and that which can be properly barred.
Nineteen years ago, Justice Scalia (along with Justice Kennedy) wrote the following, dissenting in Austin:
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.
By the end of this year, that may become the law of the land.
In other news, the Court denied our petition for a writ of certiorari in Federal Insurance Co. v. Kingdom of Saudi Arabia. Sigh. As for the Ricci case involving the New Haven firefighters, Lost Left Coaster has begun that discussion, and if I have more to say I'll let you know.
edited: My friend Rick Hasen, for Slate:
If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama's $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.... Given the dynamics of the court, there is a great chance the justices will use the opportunity to overrule limits on how much money corporations can spend supporting candidates -- whether or not Judge Sonia Sotomayor is confirmed in time to hear the case in September.