February 1, 2010

The First Amendment and Corporations: ——— The Supreme Court Speaks Again

by Hal Gershowitz

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“Congress shall make no law … abridging the freedom of speech or of the press; or the right of the people peacefully to assemble and to petition the Government for a redress of grievance” (First Amendment to the Constitution of the United States).

Those seemingly clear words were not in the U.S. Constitution when it was signed on September 17,1787. Debate on the rights of citizens continued after the signing, and what is now known as the Bill of Rights, the first ten amendments to our original charter were adopted and went into effect in 1791 when the State of Virginia ratified them.

The importance of the protections afforded by the First Amendment is demonstrated by its lead placement in the Bill of Rights. However interpreted in many different situations, it is the central requirement of a free society and a democratic participatory government. Without its free speech provision (there are other protections in the First Amendment as well, i.e., the prohibition on the establishment of a religion, a free press and the right of peaceable assembly) Congress could prohibit criticism of the government and its elected representatives. Our framers knew that elected officials would be tempted, as their European predecessors were, to use the power of the law to suppress even loyal opposition. They recognized that free speech was the underpinning of a society based on the rule of law.

Nevertheless despite the apparent clarity of language which states “Congress shall make no law abridging the freedom of speech, Congress has many times enacted restrictions on some forms of speech and many of these limits have been upheld as Constitutional by the Supreme Court of the United States. On January 23, 2010 the Court issued its latest ruling on speech in the case of Citizens United v Federal Election Commission where it struck down specific provisions of the campaign finance “reform” legislation enacted in 2002 … what is commonly known as the McCain‑Feingold Act. In short, McCain‑Feingold imposed new and stringent regulations on the raising of campaign contributions and the use thereof.

Some quick trip through the history of legislation “abridging” free speech and the Supreme Court’s rulings thereon is appropriate (perhaps essential) to understanding the Citizens United ruling in context. Despite the “shall make no law abridging” language of the First Amendment, the Court has permitted certain exceptions … libel, child pornography, “clear and present danger” rulings, and earlier iterations of congressional enactments dealing with the financing of elections. Free speech cases do not necessarily involve liberal vs. conservative political thinking aligned against one another. Citizens United is no exception. Corporate interests and unions, the ACLU and the National Rifle Association, strange bedfellows indeed, filed amicus (friend of the court) briefs opposing the campaign finance limits imposed by McCain‑Feingold while most major newspapers editorialized in favor of the defendant, the Federal Election Commission. What is apparent is that positions among interest groups and politicians shift on the subject of free speech depending on whose “ox is being gored,” which seems to us to cry out for enforcing unlimited free political speech. Once again, it appears that the Founding Fathers anticipated this very issue and wanted to protect against exceptions to unbridled free speech when political power shifted.

In 1971, prior to McCain‑Feingold, Congress passed the Federal Election Campaign Act and amended it in the aftermath of Watergate in 1974. This Act as amended established the concept of public financing of elections, created various election regulations and created the Federal Election Commission as the enforcement agency. Strict limits on contributions and expenditures were part of this law. However in January 1976, in the case of Buckley v Valeo, the Supreme Court struck down parts of the 1974 law but upheld others. In brief, the Court upheld limits on contributions but ruled against limits on political expenditures.

In 1990, in the case of Austin v Michigan Chamber of Commerce the Court upheld, as not in violation of the First and Fourteenth Amendments, Michigan’s Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates for political office.

Which brings us to the Citizens United case. One of the provisions of McCain‑Feingold bans the use of corporate or union money to pay for “electioneering communication,” which is defined as broadcast advertising that identifies a federal candidate within 60 days of a general election. Prior to the 2008 elections, Citizens United produced a film extremely critical of Hillary Clinton but the Federal Elections Commission ruled that Citizens United could not broadcast the film. The lower courts upheld the FEC. The Supreme Court, however, in its very recent 5 to 4 decision overturned the lower courts and found much of McCain‑Feingold to be unconstitutional. In so doing, it also overturned its prior decision in the Austin case. The breadth of this recent decision will be discussed endlessly and challenged legislatively through attempts by Congress to legislate around this ruling.

Justice Kennedy wrote the majority opinion for the Court, and Chief Justice Roberts and Justice Scalia issued concurring opinions. Justice Kennedy found that “political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws.” But the linchpin of the three opinions comprising the majority is that the First Amendment deals with speech and not the speaker. No distinctions are made between individuals or corporations, nor are certain media singled out. Justice Kennedy explained the majority reasoning in stating “no sufficient government interest justifies limits on the political speech of … corporations.”

Justice Scalia challenged the reasoning of Justice Stevens dissenting opinion which was premised on the notion that corporations were despised at the end of the eighteenth century and that therefore the Founders didn’t intend to protect them. Justice Scalia however noted that even if this were true, corporations at that time were granted monopoly privileges. Moreover, there were many small, unincorporated business associations, which, he stated, were the true progenitor of today’s corporations. Also colleges, towns, religious institutions and guilds “had long been organized as corporations at common law. “Surely they weren’t despised. This left, he said, only the question of whether the speech at issue is speech covered by the First Amendment.

Chief Justice Roberts’ concurring opinion seems to answer that question quite succinctly: “A documentary film critical of a potential Presidential candidate’s core political speech and its nature as such, does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech” and its capacity “for informing the public.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). “Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”

The reaction to Citizens United was swift by both opponents and supporters of the decision. President Obama, in his new full-throated populist mode, called the decision a victory for big oil, Wall Street banks, health insurance companies and other powerful interests. Of course he failed to mention big labor, an interest group so powerful that in the Senate health insurance negotiations he gave union labor an exception from the proposed tax on so called “Cadillac” plans at the expense of the 81 percent of American workers who do not belong to unions. Interestingly, this is also the same Barack Obama who, after pledging to finance his 2008 campaign using public financing, turned away from it when he found that he could raise more money privately. Candidate Obama saw nothing particularly evil about the influence of money contributed to him. Ironically, Senator McCain was forced to rely on public financing to his great detriment.

Various opponents of the Court’s decision have cranked out their obligatory talking points, some of which focus on the fear of foreign intervention in our elections by non-U.S. corporate interests. Even the president played this fear card in his State-of-the Union address last Wednesday night which brought the party automatons to their feet cheering, while the Justices who were there as guests of the Congress sat in shocked silence. It would, at first blush, be a reasonable concern to raise except under existing federal election law which the Court’s decision clearly leaves intact, and which the president would surely have known if the White House counsel had vetted his speech, foreign corporations may not spend any money in U.S. elections whatsoever. This, we assume, is to what Justice Alito’s silent not true referred. Ironically, it was Alito’s incredulous mouthing of “not true” that had the talking heads abuzz rather than the inappropriate, gratuitous and inaccurate depiction of the opinion gliding over the teleprompter and, simultaneously, advanced to the nation by the President.

Most newspapers have also railed against the Citizens United opinion. Of course they would. Congress exempted them and their corporate owners from McCain‑Feingold, thereby vastly increasing their influence. Of course, when their interests are at stake (protection of reporters’ sources, libel laws, etc.) they are major supporters of unlimited free speech. This raises an interesting question. McCain‑Feingold exempted the press from its restrictions, but just what is the press? Do “issue-oriented” print journals enjoy the exemption from McCain‑Feingold? What about electronic messages? Does our weekly essay in “Of Thee I Sing 1776” enjoy “press” status? Where would the line be drawn?

We see any restrictions on contributions or expenditures as arbitrary abridgments of free speech with no discernable public benefit. Money has leaked into political campaigns no matter what restrictions are placed on contributions. Isn’t the real risk of contributed money, the possibility of undisclosed promises of future legislative favor? Wouldn’t it be better, far more effective and clearly more transparent to require that all contributions be posted on the Internet as soon as they are received? More information (the very essence of free speech) assuring immediate public disclosure of the source, the timing and the amount of all contributions strikes us as a far better antidote to political corruption than having Congress enact laws where the only clear result is to provide electoral advantage to their own incumbency.

It is often opined in the process of political discourse, especially on the left, that the framers of the constitution could have never anticipated the complex issues that America would face in the 20th and 21st centuries and, therefore, the courts must be given considerable latitude in their interpretation of constitutional questions. We won’t engage in that debate in this essay. We believe, however, that it would stretch credulity to the extreme to imagine Madison, Hamilton or Jay (those great defenders of the Constitution and the authors of the Federalist Papers) ever postulating that any segment of American society might be denied the absolute and unfettered right to engage in free speech or public political debate.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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