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Commentary

Citizens United: A Win for Free Speech or a First Amendment Disaster?

By Marjorie Heins

(January 22, 2010) - Devotées of the First Amendment often think they are the ultimate authorities on what those few Delphic words barring Congress from making any law “abridging the freedom of speech” actually mean. But there is plenty of room for disagreement. What, for example, are the underlying purposes of the First Amendment freedom of speech; what kinds of expression does it protect; and when, if ever, are curtailments justified?

A dramatic example of the differences in interpretation was yesterday’s monumental and, at least according to the usually staid and restrained New York Times, “disastrous,” Supreme Court decision in the case of Citizens United v. Federal Election Commission. While the majority of five justices in Citizens United indulged in soaring First Amendment rhetoric as they undid a century of established law barring corporations from spending their shareholders’ money on election campaigns, the four dissenters insisted that the First Amendment was never meant to bestow full free-speech rights on those artificial, government-created entities known as corporations, and that the fundamental values animating the amendment’s free speech clause are better served by campaign finance regulation than by unlimited spending by those with the biggest war chests.

"Hillary: The Movie"

Citizens United involved a feature-length film called "Hillary: The Movie," a blistering attack on the then-New York senator and presidential candidate. A federal district court ruled that the film, intended for television broadcast and financed by the nontprofit corporation Citizens United, with substantial support from for-profit corporations, was covered by the federal campaign finance law because, if shown on television within a designated period before a federal election, it would qualify as a campaign ad advocating the defeat of Hillary Clinton. Campaign finance law required that such an ad be financed through political action committees, or PACs, among other possible sources, rather than directly through corporate or labor union funds. (There was a narrow, constitutionally based exemption from the ban for nonprofit advocacy corporations that do not receive support from business corporations.)

Citizens United appealed, arguing that the law did not, and could not constitutionally, apply to "Hillary: The Movie.” But in 2009, the Supreme Court ordered rebriefing and reargument on the much broader question of whether existing precedents that had upheld bans on direct corporate expenditures for election campaigns should now be overruled.

It was no surprise then, that the Court's sweeping decision yesterday in Citizens United v. Federal Election Commission ruled that the century-old ban on direct campaign expenditures by corporations (and by inference, on unions as well) violates the First Amendment. Overruling two relatively recent precedents, Justice Anthony Kennedy wrote for the five-justice majority that government cannot pick and choose among which kinds of individuals or entities will be allowed to engage in core political speech; it can "regulate corporate political speech through disclaimer and disclosure requirements," but it cannot "suppress that speech altogether." He added that creating a PAC is too expensive and burdensome to be an adequate substitute for the full exercise of corporations' First Amendment rights.

Justice John Paul Stevens, joined by Justices Ginsburg, Breyer and Sotomayor, wrote the dissent. Stevens began by disputing Kennedy's basic premise, "that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its 'identity' as a corporation.” He called this a “glittering generality" that has "rhetorical appeal,” but “is not a correct statement of the law." Stevens proceeded to explain why the artificial, state-created entities known as corporations have never been thought to have the same rights as individual citizens. He also took the majority to task for its aggressive judicial activism: brushing aside a number of narrower grounds for deciding the case and reaching out to establish radical new restrictions on the ability of legislatures to pass laws aimed at controlling the enormous power of money in American elections.

Those who view the First Amendment as protecting not only the content of speech but also the expenditure of unlimited amounts of money to disseminate it have naturally hailed the decision in Citizens United. Those who see unlimited spending, especially by business corporations, as a serious threat to democracy have been equally vociferous in expressing their distress. Michael Waldman of the Brennan Center for Justice, long a leader in campaign finance reform, declared for example on The New York Times blog that the decision “matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court. In that case, the court reached into the political process to hand the election to one candidate. Today it reached into the political process to hand unprecedented power to corporations.”

The New York Times itself was even more damning. Its lead editorial today asserted that

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

The First Amendment and Campaign Finance

Any restrictions on campaign activity - disclosure requirements, caps on expenditures, bans on corporate electioneering - burden the First Amendment right to political speech. But there are countervailing First Amendment interests on the side of allowing all viewpoints - not just the richest or most powerful - to be heard. And the First Amendment is not an "absolute": when there is a "compelling state interest," even core political expression can be regulated. It is difficult to think of a more compelling interest than the preservation of representative democracy.

The question in cases involving campaign finance, then, has usually boiled down to whether a restriction is overbroad - that is, whether it burdens more political speech than necessary - or whether it is "narrowly tailored" to remedy the evil at hand. In a major decision in 2003, McConnell v. FEC, a majority of the Supreme Court deferred to Congress's judgment about what was necessary to repair an American electoral system that has been severely compromised by huge expenditures of money. But the makeup of the Supreme Court changed, and with the retirement of Justice O’Connor and the appointment of Justice Alito, the dissenters in McConnell now had a majority ready to strike down not only individual applications of campaign finance law but one of its major premises: that business corporations and unions cannot engage directly in electioneering, but must set up PACs.

Justice Kennedy's majority opinion in the Citizens United case noted an anomaly: that highly concentrated mass media companies have an exemption from the legal ban on corporate campaign advocacy – an exemption that seems obviously required by First Amendment because of their journalistic role – but that other corporations do not. The Citizens United decision eliminates the anomaly, but at what many observers think will be a high cost to the fairness of elections and the functioning of democracy.

Although it is too early to measure the impact of the Court’s radical change in campaign finance law, the Citizens United decision did have the virtue at least of eliminating the necessity for case-by-case judgments about which of the nation's thousands of nonprofit advocacy corporations (such as the ACLU) are entitled to the constitutional exemption from the ban on corporate electioneering. Now, the ban itself has been eliminated by judicial fiat.

The majority opinion in McConnell v. FEC had closed by noting that when it comes to politics, "money, like water, will always find an outlet." Ultimately, it will take a fundamental rethinking of the meaning and purpose of the First Amendment – whether it really means that unlimited expenditure of money equals constitutionally protected speech - before the overwhelming power of heavily financed televised campaign ads will cease to frame and often determine the outcome of elections.

For more background, see FEPP’s Campaign Finance Page, as well as the materials at the Campaign Legal Center, and the Brennan Center for Justice.

 


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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