Argument preview: Corporations in politics

Friday, September 4th, 2009 5:48 pm Lyle Denniston Print This Post

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NOTE: The Supreme Court case set for argument on Wednesday, Sept. 9, Citizens United v. Federal Election Commission(08-205), originated in the past Term. It is now being reargued. The schedule for the 80-minute argument Wednesday is here. ScotusWiki has a full entry, here, on the case as it unfolded up to this point; that page includes all of the briefs. The following post discusses what is now before the Court. Portions of this post also will appear as part of the Wiki entry, which will be updated as the case proceeds to a decision.

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Looking back on the Gilded Age, historians Samuel Eliot Morison and Henry Steele Commager wrote: “The nation was fabulously rich but its wealth was gravitating rapidly into the hands of a small portion of the population, and the power of wealth threatened to undermine the political integrity of the Republic.” Justice Felix Frankfurter quoted that remark in a 1957 decision, and recalled that in the late 19thCentury, there had been a “popular feeling that aggregated capital unduly influenced politics, an influence not stopping short of corruption.”

For generations, that image of the Gilded Age has shadowed the American

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Wednesday, September 9, 2009

First Amendment under fire

The selective muzzles applied by the McCain-Feingold law

By David N. Bossie

The First Amendment to the U.S. Constitution provides that "Congress shall make no law ... abridging the freedom of speech."

The Framers' clear intent was first and foremost to protect political speech. Today, in a rare summer session, the Supreme Court will hear arguments as to whether it should overrule two previous, and in my opinion incorrectly decided, rulings on political free speech. Namely, the justices will decide whether or not to allow Austin v. Michigan State Chamber of Commerce and a significant section of McConnell v. Federal Election Commission, to stand, and in doing so, how far the First Amendment goes to protect the right of organizations to support or criticize candidates for federal office.

In 2007, Citizens United, the grass-roots advocacy group that I head, produced a documentary titled "Hillary The Movie" about Hillary Rodham Clinton and sought to show, sell and promote the film when public interest in it would be at its height in January 2008. Unfortunately for us (and our film sales), under federal election law, we could produce our film but could not advertise its existence on television and radio, nor could we give cable subscribers the opportunity to view the film in an "on demand" format.

The legal basis for banning our movie from the airwaves is that the McCain-Feingold campaign finance law prohibits corporations from engaging in political speech and that Citizens United, though a nonprofit corporation, is still a corporation, and all corporate money is banned, no matter what.

McCain-Feingold made it a felony offense punishable by up to five years in prison to broadcast our movie or advertising promoting sales of the movie during the 2008 election cycle solely because of their political content.

Even more frightening than the government's position that the broadcast of our movie can be criminalized are the logical consequences of that position if validated by the Supreme Court. When the case was first argued last spring, the government went so far as to argue that Congress could have gone even further, making it a crime to put the movie on Web sites such as YouTube or to provide DVDs of the film to public libraries. The government even claimed that its authority extended to books produced with corporate funding (such as, for example, those published by any commercial publisher in the country) and that political books could be banned without infringing on the First Amendment.

Americans of all political stripes can agree that when the U.S. government claims the authority to ban books solely because they contain political speech, something has gone terribly wrong. And that is why such ideologically diverse organizations as the American Civil Liberties Union, the National Rifle Association, the AFL-CIO and the Reporters Committee for Freedom of the Press, along with dozens more, have joined together in their support of Citizens United's defense of the First Amendment.

The government argues that the criminalization of political speech is justified by the need to prevent corporations from influencing elections, but that logic is fundamentally and fatally flawed. To begin with, that argument is predicated on the idea that the government has authority to equalize all voices in the political arena, that the government must muzzle one group in order to allow another to be heard more effectively. But if the government were to follow that train of thought to its logical conclusion, it would be forced to slip that same muzzle on immensely wealthy individuals who participate in the electoral process.

Moreover, the government has given a free pass to some of the largest conglomerates in the world when it comes to political participation. General Electric, Microsoft, Disney and Time Warner are all exempt from the government's rules because of an amorphous exemption for the "institutional media." These outlets seek to influence voters all the time and provide a corporate-funded platform to some of the toughest partisan commentators in America.

I refuse to believe the First Amendment provides greater protection to Keith Olbermann and Glenn Beck than it does "Hillary The Movie." Instead, I believe First Amendment rights are sacred. If the government wants to restrict those rights, its reasons must be strong and crystal-clear. Further, the law must be as narrow as possible in order to minimize its unintended effects. In Citizens United v. Federal Election Commission, the government first claimed it was protecting the public from what Congress believed is the corrupting influence of corporate wealth. In its more recent arguments, it has switched course, claiming it is protecting minority shareholders from the misuse of their investments. Neither of those rationales is remotely applicable to Citizens United and its movie.

Clearly, the current campaign finance regime is neither logical nor workable. It is time for the Supreme Court to strike down Austin and McConnell and return liberty to political life in the United States of America.

David N. Bossie is president of Citizens United, a nationwide grass-roots organization dedicated to restoring the government to citizen control.