Campaign Finance Law v. Freedom of Speech
The Landmark Ruling
The court case of Citizens United v. Federal Election Commission, decided on by the Supreme Court on Thursday, is a landmark decision for political speech.
A divided Supreme Court struck down decades-old limits on corporate political expenditures, potentially reshaping the 2010 election landscape by permitting businesses and unions to spend freely on commercials for or against candidates.
The decision, which overturned two Supreme Court precedents, was centered around a 90-minute documentary called “Hillary: the Movie” that was set to run on cable channels during the 2008 Presidential campaign. The producer of the film, Citizens United, fell under McCain-Feingold campaign-finance regulations because it accepted business contributions; nonprofits were exempt from regulations if they limited their fund-raising to donations from individuals. “Thursday’s ruling swept away such distinctions, freeing both for-profit and nonprofit entities to spend freely on political ads.”
A Look at the Constitution
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That is the text of the First Amendment of the United States Constitution.
It doesn’t take a Constitutional expert lawyer to read the amendment constructed only of the free speech part (utilizing those nice semicolons):
Congress shall make no law abridging the freedom of speech, or of the press.
As such, the issue boiled down to three terms, says Matt Welch of Reason magazine in a CNN op-ed:
Political documentary, banned, government.
These are derived from Welch’s summary of the court case:
Citizens United, a conservative 501(c)(4) nonprofit that has funded a dozen political documentaries over the years, produced a critical documentary about Hillary Clinton in 2008 entitled “Hillary: The Movie.” By a decision of the federal government, which was enforcing the Bipartisan Campaign Reform Act (known more broadly as McCain-Feingold), this piece of political speech was banned from television.
Congress made a law, McCain-Feingold, that abridged the freedom of speech, which granted to the government the authority and power to enforce a ban of the documentary film, or more generally, speech. Taken in this simplistic perspective, the Bipartisan Campaign Reform Act directly violates the First Amendment. It abridges the freedom of speech.
By definition, the word “abridge” means “to shorten by omissions while retaining the basic content”, “to reduce or lessen in duration, scope, authority, etc” and “to deprive; cut off.” In this case, the third definition applies most accurately: the documentary by Citizens United is being cut off from public viewing.
John Stuart Mill described the freedom of speech, or the freedom of expression, as it is sometimes referred to, as comprising of three distinct aspects:
- the right to seek information and ideas;
- the right to receive information and ideas;
- the right to impart information and ideas
The latter two points were violated in this case, where the federal government was restricting Citizens United from imparting information and ideas regarding the election, and it was also preventing American citizens from receiving the information and ideas.
Obviously, the freedom of speech is not absolute. There are certainly restrictions that must be, and are, placed on free speech, most specifically when it conflicts with other rights or values. One particular example of this conflict arises in the Heckler’s veto, wherein speech is curtailed or restricted to prevent a reacting party’s behavior which poses the threat of harm to individuals or the general public. Alternatively, a heckler would be restricted from drowning out the speaker or from physically inhibiting his or her speech.
What Sayeth the Supreme Court?
Unfortunately, I did not read the entire 180+ page decision, but the WSJ pinpoints the most essential parts:
From the above article:
“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,” he wrote.
Justice Kennedy wrote that, taken to its extreme, the restriction on corporate spending could silence media organizations or even allow banning such political-themed movies as “Mr. Smith Goes to Washington.”
The court did reach broad agreement on one point, finding that the McCain-Feingold provision requiring political messages to disclose their funder was constitutional. Only Justice Clarence Thomas dissented from that holding. He cited reports that backers of a 2008 California measure abolishing same-sex marriage, Proposition 8, were harassed by their opponents.
The decision also left standing the federal ban on direct corporate contributions to candidates, enacted in 1907. Justice Kennedy cited earlier rulings justifying that ban as a measure to prevent corruption.
The Debate on Both Sides
From Welch again:
Even if you just can’t bring yourself to believe that people who take civil liberties seriously have long-held serious civil libertarian criticisms of campaign-finance laws, or if you simply think they’re all wrong, I’ll offer this last salve: It has never been easier for groups of citizens to swarm together and flow money through the Internet toward campaigns and candidates who excite them. Ask Ron Paul — or more relevantly, Barack Obama — what’s more powerful: $10 million from Dr. Evil Industries, or $10 each from 1 million people who can actually vote?
The American people are not sheep, eager to be led by the highest bidder. As the Supreme Court rightly noted today, “The First Amendment confirms the freedom to think for ourselves.”
Ciara Torres-Spelliscy, in another CNN op-ed, cautioned that some new problems will arise from the new ruling, and offered a direct solution to the potential negative side effects:
One immediate firebreak would be to change the securities laws to allow shareholders authority and oversight over corporate political spending. After Citizens United, corporate managers are free to spend corporate treasury money on politics without the knowledge or consent of their shareholders.
The new law can be modeled on one from our peers in Britain, who since 2000 have required shareholder authorization for political spending by British companies. The U.K. also requires British companies to report political spending to shareholders in annual reports. Adopting this system in the U.S. would give shareholders a way to check such spending of corporate managers.
Ed Rollins extinguishes some of the outrage that anti-corporate media pundits are spewing in response to the decision:
In 1907, Congress passed the Tillman Act banning corporations from donating money directly to federal candidates. Corporations still won’t be able to do that. But what they can do under the court’s Thursday ruling is run their own campaigns advocating the election of someone or the defeat of someone. All they have to do is disclose what they are spending and on whom.
Rollins also explains some of the practical aspects of the case that so many people fail to realize. Namely, the elimination of the huge barriers to entry that aspiring candidates faced when running for office:
Raising money is the most difficult part of running a campaign. Many a good candidate falls short because he or she can’t meet the hurdles that have been set up to protect incumbents. The floodgates for money will obviously be opened by the court’s decision and that may give good candidates the opportunity to compete against incumbents who have tremendous government resources that help them run year-round campaigns on taxpayer dollars.
Equally important, it will allow candidates to run effective campaigns against millionaires and billionaires who self-fund their campaigns. Michael Bloomberg recently spent over $108 million of his own money to win his third term as mayor of New York. The recently defeated governor of New Jersey, Jon Corzine, spent over $100 million of his own money in his races.
He summarizes his thoughts on what this means going forward:
Tuesday’s election was the wake-up call and the court’s decision will make our system more competitive. A Congress listening to the voters is what will make it relevant to us again. There will certainly be campaign abuses, as there are now, and many will not be happy with the court’s ruling, but the full disclosure law lets you know who is doing what and that’s a good thing.
