Friday, January 22, 2010

High Court rejects limits on corporate speech

The United States Supreme Court has thrown open the door to unfettered spending by corporations and unions on political elections, ruling that corporations may spend as much of their general treasuries as they like in support or opposition to presidential and Congressional candidates for president and Congress. The 5-4 decision threw out a 63-year-old law designed to limit the influence of such entities and explicitly overturned the Court's own decision in Austin v. Michigan Chamber of Commerce (494 US 652, 1990).

The case, Citizens United v. Federal Election Commission, (No. 08-205, Jan. 21, 2010) stemmed from an attempt by the group, Citizens United, to release a documentary that was brutally critical of then-presidential candidate Hillary Clinton. The group's funds were largely from individuals, but a small portion came from for-profit corporations. That portion raised concerns when the documentary, which referred to Clinton by name, was placed in the on-demand option of a cable company. Citizens United wanted to advertise for the documentary, but feared that it might fall afoul of Section 441b of the Bipartisan Campaign Reform Act (BCRA), which prohibited electioneering communications made within 30 days of a primary or 60 days of a general election. The group asked a district court for a declaratory relief, which the court refused.

The Supreme Court first found that it could not rule on the narrower grounds set forth by the group. The film was publicly distributed under BCRA; the cable company reached 34.5 million households, and the movie could have easily been seen by more than the 50,000 person threshold for public distribution. Furthermore, any effort to decide which communication would be best for a specific type of message would have, held the Court, raised questions as to the Court's authority on that point.

Lastly, the Court found that any attempts to rule on narrower grounds would chill political speech. The ongoing problems with the law would continue, ruled the Court. Entities that wished to challenge the law would have to do so far ahead of the election cycle and a general fear of prosecution would force entities to ask the government for advice, which in of itself, is an onerous restriction on free speech. Thus, the Court rejected the grounds on which the case came to it and went after overall viability of the law.

"The censorship we now confront is vast in its reach," Justice Anthony Kennedy said in his majority opinion, and that phrase summed up the majority's approach to the law. The Court ruled that the law is an unacceptable restriction on the political speech of corporations. Use of political action committees, ruled the court, did not evade this restriction, as PACs are "expensive to administer and subject to extensive regulation." Moreover, ruled the Court, the public has a right to know certain things and have every right to gain that knowledge from corporations or unions.

The Court batted away arguments by the United States government that the law prevented the distortion of public discourse and the appearance of corruption. There can be no distortion in a true marketplace of ideas, the Court appears to have held. There is no concern of corruption as the public can discern for itself when a public official has traded influence or access for communications assistance.

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas joined Kennedy to form the majority in the main part of the case.

Strongly disagreeing, Justice John Paul Stevens said in his 90-page dissent, "The court's ruling threatens to undermine the integrity of elected institutions around the nation."

Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined Stevens' dissent, which complained that the court majority overreached by throwing out earlier Supreme Court decisions that had not been at issue when this case first came to the court.

The decision's most immediate effect is that corporate and union-sponsored political ads will be able to run right up to the day of an election. Such entities will be allowed to call for the election or defeat of specific candidates.

This spending cannot be coordinated with political candidates and the rules governing PACs remain, for now, untouched.

The political reaction was swift and varied.

"With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans," said President Barack Obama, who promised a swift, bi-partisan repudiation of the decision.

His 2008 opponent, Senator John McCain said that he was "disappointed by the decision" and Senate Minority Leader Mitch McConnell praised the decision, calling it an "important step in the direction of restoring the First Amendment rights of these groups."

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