Print

 Email

First Amendment To The U.S. 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.

Where we talk about shareholder protection and where we talk about the distortion of the electoral process that occurs when corporations use their shareholders’ money who may or may not agree -

United States Solicitor General
Elena Kagan

Washington

Who Shall Possess The Right Of Political Speech?

One of many thorny issues before the United States Supreme Court this session deals with the rights of corporations  ( and labor unions ) to engage in political speech. Since 1907, federal law has prohibited corporations from using their general treasury funds in federal elections. Some think existing law needs no review while others believe free speech ought to avail to all persons, real or imaginary, living or juridical. To some degree the issues are political, but they are equally practical in the age of big media, new media and widespread contempt for government, banking, finance and seemingly everything corporate.

Other Reports And Research Materials

Supreme Court: Citizens United v. FEC Briefing

When Free Speech Goes Commercial

Supreme Court:Oral: Citizens United vs. Federal Election Commission

There are many conflicting views on this issue  — some entirely political, some legal, and a great many philosophical. No matter that the First Amendment is a single, easily understood sentence, it was conceived and written before electronic media and without knowledge of today’s massive concentrations of wealth, nor the emergence of multi-national corporations whose economic pursuits may not align with American interests, values or aspirations.

Because political speech is  constitutionally protected  it remains free of any requirement for accuracy, probity or relevancy.  What is said, how it is said, and to whom it is said are personal rights guaranteed by the First Amendment to the U.S. Constitution. But one should not assume that political speech is inherently probative, relevant or credible. Political speech is not about right, wrong, truth, fact or reality — it’s about power. Power to persuade. Power to elect. Power to change the rules to favor co-conspirators, vanquish enemies, and power of the purse.

Corporations Cannot Cast a Ballot — They Vote with Their Checkbook

In it’s simplest form, the Citizens United vs. Federal Elections Commission case now before the Supreme Court is about how much free speech power ought to be afforded juridical persons ( corporations & unions ). The fundamental issues were settled over 100 years ago but have been long considered as reflective of outdated, or reflective of liberal ( populist ) ideals. Now that the balance of power on the Supreme Court has shifted toward more conservative jurists, the Roberts court has elected to hear a case that could substantially change the nature and quality of American political discourse.

It’s not that a ruling to end some or all Congressionally mandated laws limiting corporate political advocacy would make American politics any dirtier or sleazier, only that politically interested corporations would be able to more easily finance and/or advertise in favor of issues or candidates in ways not presently permitted by Federal law. Thus, liberals have claimed that  failure to reign in corporate interference in the electioneering process could effectively damage political freedom. Conservatives rebuff such claims arguing that permitting unions and corporations to openly and freely participate in a robust political debate is inherently protected by the First Amendment.

Should corporations organized for economic power possess the right to use that power to overwhelm the voices of ordinary citizens? It is on this issue that the Supreme Court will soon rule in the Citizens United vs. Federal Elections Commission case. Whichever direction the court takes will have immense impact on more than American politics, for the issues of what constitutes free speech are central to American freedoms, values and social stability.

Questions At Bar

On the surface, the issues are clear — yet their implications remain entirely dependent on who defines them. For example, consider how former Solicitor General Theodore Olson, arguing on behalf of Citizen United,  frames the issues:

[ Extracted from Appellant Citizens United Brief, by Theodore Olson ]

1. Whether the prohibition on corporate electioneering communications in the Bipartisan Campaign Reform Act of 2002 (“BCRA”) can constitutionally be applied to a feature-length documentary film about a political candidate funded almost exclusively through noncorporate donations and made available to digital cable subscribers through Video On Demand.

2. Whether BCRA’s disclaimer, disclosure, and reporting requirements can constitutionally be applied to advertisements for that documentary film that the Federal Election Commission concedes are beyond its constitutional authority to prohibit.

For Ted Olson the case is about a specific event ( a derogatory movie about Hillary Clinton ) and a specific statute which he deems unconstitutional by means of the First Amendment. His goal is to get the court to alter what has been considered to be settled law by applying First Amendment rights to all speech regardless of its origin.

The defendant-appellee, the Federal Elections Commission filed a brief that defined the issues very differently to the degree that it side-steps the specifics in favor of addressing certain legal issues. Was the district court right in its findings and may existing law be permissible applied to advertisements in whatever form they may take.

[ Extracted from Appellee Federal Elections Commission Brief, by Thomasenia P. Duncan ]

1. Whether the three-judge district court correctly concluded that appellant’s film about then-Senator Hillary Clinton is the functional equivalent of express advocacy under the test set forth in FEC v. Wisconsin Right to Life, Inc. , 127 S. Ct. 2652 (2007).

2. Whether the three-judge district court correctly held that the reporting and disclaimer requirements of federal campaign finance law may permissibly be applied to advertisements that are not the functional equivalent of express advocacy.

Arguendo

Theodore Olson, arguing on behalf of appellant Citizens United, summed up the issue succinctly when he said,

Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment’s guarantee of free speech. Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations, any union or any corporation.

Conversely, FEC counsel Thomasenia P. Duncan framed both the issues and the nature of the litigation as little more than a routine matter of congressional lawmaking.

Since 1907, federal law has restricted corporations from using their general treasury funds to influence federal elections.  The Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431  et seq., makes it “unlawful  *  *  *  for any corporation whatever  *  *  *  to make a contribution or expenditure in connection with any election” for federal office.

Considering What Matters Most

A long list of merit and amicus-curiae briefs dealing with the Citizens United case were delivered to the Supreme Court last summer, then in September, the Court heard oral arguments from a wide range of interested parties. One of them, was U.S. Solicitor General Elena Kagan, the lawful representative for the government in actions before the Supreme Court.

New York Times Editorial Argues Against Change

“The founders of this nation knew just what they were doing when they drew a line between legally created economic entities and living, breathing human beings. The court should stick to that line.”

September 22, 2009

Notwithstanding the clearly focused views expressed by Mr. Olson, the most illuminating dialog during oral testimony came when Solicitor General Elena Kagan began her statement in favor of continuing one hundred years of constraints on the political speech rights of corporations. We found her arguments equally persuasive for she advocates for a ruling consistent with  prior decision by the court. She argues that constitutional rights afforded to citizens of the United States are not now, and ought not be, afforded to juridical persons.

To the degree the central issue now before the court is corporate personhood, that is what rights ought juridical persons [ created by the state, not by birth ] have as compared to living persons, General Kagan raises many immensely probative points. We are not persuaded that the court any longer holds as settled law, issues of stare decisis in first amendment cases, or the presumed rights of the individual against the juridical.

When it comes to exercising constitutional rights, the outcome of  Citizens United could change long established American jurisprudence and public policy. In a nation in which wealth has all but extinguished the middle class and made politics a game of power, not ideas, the question of corporate personhood take on immense importance in determining whether those who give their lives for freedom are the equal of corrupt institutions and/or corporate malfeasance.

Stare Decisis And Common Sense

At the heart of General Kagan’s presentation is the doctrine of stare decisis, a legal term that considers the importance of precedent and stability in legal foundations and reasoning.

GENERAL KAGAN: Mr. Chief Justice and may it please the Court:

I have three very quick points to make about the government position. The first is that this issue has a long history. For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.

Number two -

JUSTICE STEVENS: Wait, wait, wait, wait. We never questioned it, but we never approved it, either. And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.

GENERAL KAGAN: I will repeat what I said,

JUSTICE STEVENS: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.

JUSTICE STEVENS: I don’t understand what you are saying. I mean, we are not a self — self-starting institution here. We only disapprove of something when somebody asks us to. And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.

GENERAL KAGAN: Well, you are not a self-starting institution. But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.

JUSTICE KENNEDY: But that judgment was validated by Buckley’s contribution-expenditure line. And you’re correct if you look at contributions, but this is an expenditure case. And I think that it doesn’t clarify the situation to say that for100 years — to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction,exemption from media, content-based distinction,time-based distinction. We’ve never allowed that.

GENERAL KAGAN: Well, I think Justice Stevens was right in saying that the expenditure limits that are in play in this case came into effect in 1947, so it has been 60 years rather than 100 years. But in fact, even before that the contribution limits were thought to include independent expenditures, and as soon as Congress saw independent expenditures going on Congress closed what it perceived to be illegal. So in fact for 100 years corporations have made neither contributions nor expenditures, save for a brief period of time in the middle 1940′s, which Congress very swiftly reacted to by passing the Taft-Hartley Act.

Now, the reason that Congress has enacted these special rules — and this is the second point that I wanted to make -

JUSTICE STEVENS: Before you go to your second point, may I ask you to clarify one part of the first, namely, your answer to the question I proposed to Mr. Olson, namely, why isn’t the Snowe-Jeffords Amendment, which was picked on by Congress itself, an -and which is argued by the NRA, an appropriate answer to this case?

GENERAL KAGAN: That was my third point, Justice Stevens.

JUSTICE STEVENS: Oh, I’m sorry.

(Laughter.)

To the degree that the issues before the court are political, the outcome may further empower the wealthy and powerful. Or they may not, but our study of the issues makes us wonder whether corporations  who do and ought to have standing before the law, are in any way the equal of those citizens who own the nation and who are called upon to risk their lives and property to defend it.

Richard Parsons contributed to this essay.