Citizens United v. FEC came down today

It looks like corporate money will be flowing into campaigns without the need to set up PACs. The decision supports coporations' rights to free speech.

As we discussed in prior posts, the Court could have decided the case in favor of Citizens United on narrow grounds specific to the facts of the case, but chose instead to broadly declare the corporate limits unconsitutional, overturning the Austin case.

The law in question was described by the Court:

Section 441b makes it a felony for all corporations including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.

I've discussed the basic facts of the case before. Citizens United, a corporation, made a decidedly negative movie about Hillary Clinton during primary season. The movie was going to be distributed through pay per view. The question is whether Section 441b made it illegal to distibute the movie within 30 days prior to a primary election.

The Court rejected Citizens United's claim that the Hillary movie was merely a documentary film examining historical fact determining that it was express advocacy. The Court also disapproved of the narrow argument made by Citizens United that since the film was distributed only on demand, that made the corporate limits statute inapplicable. The Court did not want to have to made a decision based on the means of communication:

While some means of communication may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the par-ticular type of message and speaker would raise questionsas to the courts’ own lawful authority. Substantial ques-tions would arise if courts were to begin saying what means of speech should be preferred or disfavored. And in all events, those differentiations might soon prove to be irrelevant or outdated by technologies that are in rapid flux. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 639 (1994).

Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used todisseminate political speech from a particular speaker. It must be noted, moreover, that this undertaking would require substantial litigation over an extended time, all tointerpret a law that beyond doubt discloses serious First Amendment flaws. The interpretive process itself wouldcreate an inevitable, pervasive, and serious risk of chillingprotected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable. First Amendment standards, however, “must give the benefit ofany doubt to protecting rather than stifling speech.” WRTL, 551 U. S., at 469 (opinion of ROBERTS, C. J.) (citing New York Times Co. v. Sullivan, 376 U. S. 254, 269–270 (1964)).

The Court also rejected the more narrow argument that the Hillary movie was exempt from the corporate limits on independent expenditures prior to elections because it was exclusively funded by individuals stating that while it understands its is supposed to try to handle a case to avoid constitutional questions, the series of steps it would have to take to exempt cases like this one from the rule as now written would be too many and convoluted and would still required Austin to be overturned and the process of determining de minimus corporate contributions would chill free speech:

Consequently, to hold for Citizens United on this argu-ment, the Court would be required to revise the text of MCFL, sever BCRA’s Wellstone Amendment, §441b(c)(6),and ignore the plain text of BCRA’s Snowe-Jeffords Amendment, §441b(c)(2). If the Court decided to create a de minimis exception to MCFL or the Snowe-Jeffords Amendment, the result would be to allow for-profit corporate general treasury funds to be spent for independent expenditures that support candidates. There is no principled basis for doing this without rewriting Austin’s holding that the Government can restrict corporate independent expenditures for political speech.

Moving further into the opinion, you can see that the FEC got in trouble with those questions on applying the subject limits to media types. The Court discusses the suggestion that electronic books could be banned. It's also interesting that in attempting to describe terrible results of the limitations, the Court chose all examples of political issue organizations sucy as the Sierra Club, ACLU and NRA, being unable to communicate, but did not mention that this will apply to purely product driven corporations including health insurance companies, oil companies, companies that make products for your child who might not want to incur the cost of making them safe or effective or might not want to pay to clean up whatever lake or stream they pollute or pay workers a fair wage and give them safe working conditions etc.

The Court then goes into the terrible burden placed on PACs reporting their independent expenditures, sometimes quickly right before an election.

It's a given that the First Amendment applies to corporations. There is a long list of cases that says so. No surprises as many of them have lots of money to spend on lawyers and our courts have been very corporate friendly since the 1880s when laws meant to apply to newly freed slaves were ill enforced as to their intented beneficiaries, but widely enforced to protect corporations. Basically, the argument is that "deeming a particular group "too powerful" was not a "justificatio[n] for withholding First Amendment rights from any group—labor or corporate." They added that the limitations didn't really protect against successful candidates providing a quid pro quo to their corporate benefactors. We did see that in failed health care reform, didn't we?

Then the Court gets to the Austin case, a change in direction allowing corporate limits when prior cases had not. The Court in Austin was concerned about distortion of the dialogue. The Roberts Court said:

Austin sought to defend the antidistortion rationale as a means to prevent corpora-tions from obtaining “‘an unfair advantage in the politicalmarketplace’” by using “‘resources amassed in the eco-nomic marketplace.’” 494 U. S., at 659 (quoting MCFL, supra, at 257). But Buckley rejected the premise that the Government has an interest “in equalizing the relativeability of individuals and groups to influence the outcomeof elections.” 424 U. S., at 48; see Bellotti, supra, at 791, n. 30. Buckley was specific in stating that “the skyrocketing cost of political campaigns” could not sustain the governmental prohibition. 424 U. S., at 26. The First Amendment’s protections do not depend on the speaker’s “financial ability to engage in public discussion.” Id., at 49.

It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, includingindividuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. See id., at 707 (KENNEDY, J., dissenting) (“Many persons can trace theirfunds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary”).

I guess since many people who contribute $10s and $20s to a campaign have jobs at corporations and get paid by corporations, that's the same thing as a giant corporation funneling exponentially more money into a project that directly benefits a political campaign.

The Court turns to the idea of the "open marketplace" as if there is one when you are talking about the kinds of dollars that will be used to create these new political communications. The discussion on censorship is compelling:

When Government seeks to use its full power, includingthe criminal law, to command where a person may get hisor 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.

However, it fails to answer the question of what to do about the disproporationate ability to purchase advertising time that leads to de facto censorship of individuals like you and I.

The FEC's arguments about corruption and the appearance of impropriety fell flat on the Court and gave pornographers new reason to hope:

Moreover, if speech can be prohibited because, in the view of the Government, it leads to “moral decay” or does not serve “public ends,” then there is no limit to the Government’s censorship power.

The FEC's argument that the founders intended free speech be bestowed on individuals didn't work either:

That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.”

So now I guess we are individual-Americans in the sense that there are Italian-Americans and African-Americans. I guess corporate-Americans will get the right to vote too. Will it be one corporation one vote, one share one vote, or one overpaid executive one vote? Further, what about all those illegal-alien-corporate-Americans? Unlike Congress that went into overdrive cutting out some poor Mexican transient farm laborers and their kids from health care reform, the Supreme Court left the door wide open for the multinationals, corporations that might have started out in the USA (or not), but sure don't reside here in any legal sense because they offshore their labor forces and corporate citizenship all in order to avoid paying American taxes and avoid compliance with American labor laws, environmental laws and product safety laws. The Saudis and Chinese have enough money to buy a few candidates all by themselves. It appears that all they'd have to do is come up with a U.S. shell corporation to not only play in our political pond, but overwhelm everyday Americans with their limitless funds.

Justice Stevens wrote the partial concurrence and partial dissent on behalf of himself and Justices Ginsberg, Breyer and Sotomayor. I'll take a look at that later. Justice Thomas joined in the majority for all except Part IV. Part IV is the part leaving the disclosure requirments of BCRA. As to that section, he wrote his own dissent. Thomas not only likes the idea of unlimited corporate money pouring into campaign work, he thinks anonymous corporate speech is appropriate. It's the ultimate in astrotruf, corporations,multinational and foreign corporations hiding behind a U.S. shell corporation, should be able to attack or support candidates and not be required to tell us who they are. And here no one thought Thomas was even paying attention during the oral argument.

The effect on our political system is likely to be outrageous, but most folks probably don't care much about that. What will be interesting is how people will feel about how it affects their everyday television watching, a subject far more important to the American people than free speech rights, corporate personhood or government. Perhaps it will be the sacred American right to watch reality shows and football games that will bring sanity back to American elections. A few 30 or 60 minute pitches for some candidate who sold out to corporate power, or against his opponent, might just be what we need to convince Americans that we need fully publicly funded elections with all advertising limited to what is publicly funded.

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Here's a video on corporate personhood: