Here is my executive summary on the Citizens United case and a sad prediction.

     Citizens United, a nonprofit corporation (formed originally by my friend Floyd Brown) released during the last Presidential campaign a documentary movie about Hillary Clinton that was critical of her.  It sought declaratory and injunctive relief in Federal Court on whether it would be subject to criminal  penalties from the Federal Election Commission for distributing the movie.   CU lost at the District Court level but appealed to the U.S. Supreme Court.

     The Supreme Court under Chief Justice Roberts had previously decided some cases that marginalized the broad sweep of the McCain-Feingold campaign finance law, which placed additional restrictions of First Amendment freedoms in a Federal election context, most notably, the Wisconsin Right to Life decision, which scaled back McCain-Feingold to allow for unlimited "issue advocacy" by a corporation during an election campaign.   "Issue advocacy" communications can mention an office holder’s name, but cannot use language that "expressly advocates the election or defeat" of a candidate.  Thus, after Wisconsin Right to Life, a ban on corporate "express advocacy" of the election or defeat of a Federal candidate remained in place.  I have reported on all this previously in this column.

     In Citizens United, the Supreme Court passed on rendering what could have been a narrowly tailored decision.  It decided instead to essentially expand the scope of decision as far as it could on the issue of whether a corporate ban on express advocacy was constitutional.  It’s decision is stunning, but logical and consistent with rigorous pro-First Amendment analysis.  Political speech based on corporate identiity can no longer be banned in a Federal election.  The Court specifically overturned its own prior decision in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, allowing such a ban. In addition, another McCain-Feingold provision that restrict’s corporate independent expenditures was also overuled.  As a result of this decision, there is no longer any legal basis for the Federal Election Commission to limit the amount of corporate independent expenditures for Federal offices, and because this is the law of the land, the same appies to state regulatory bodies. These expenditures, however, must be entirely independent of the candidate.

     Corporation’s can still have PACs that have contact with and give directly to candidates in Federal elections, funded by employees, under the pre-existing rules of disclosure and limits ($5,000 per candidate per election).  

     A few words on Austin: it stood for a new "governmental interest" to prevent "the corrosive and distorting effects of immense aggregations of [corporate] wealth…that have little or no correlation to the public’s support for the corporation’s political ideas."  Namely, Austin sought to prevent corporations from obtaining what it felt was an unfair advantage in election campaigns.  This was liberal tinkering with our free speech rights.   Now, as stated in the CU decision, "[p]olitical speech must prevail against laws that would suppress it by design or inadvertence."  There are no "preferred speakers."  Instead, restrictions must be as stated in the landmark 1976 Buckley v. Valeo decision, narrowly tailored to serve a compelling state interest, and the interest at hand is preventing quid pro quo corruption, and not all corporate spending in politics.  Corporations are now in no different position that media outlets, such as newspapers, which were already exempted from the corporate ban.  The playing field for First Amendment rights in elections has been leveled by the CU decision.  Everyone is entitled to the same speech rights; nobody deserves less free speech than anyone else.  As Justice Kennedy’s decision states: "That speakers may have influence over or access to elected officials does not mean that those officials are corrupt."  "The appearance of influence or access will not cause the electorate to lose faith in this democracy." 

     Disclaimer and disclosure requirements on communications were upheld.  "They don’t prevent anyone from speaking" stated the opinion, adding they are useful in providing the electorate with information about election-related spending sources.  However Justice Clarence Thomas objected to this aspect of the decision.   He stated in a concurring opinion in part that the CU decisions fails to reconcile the "right to anonymous political speech" upheld in McIntyre v. Ohio 514 U.S. 334.  I agree with Thomas, but I feel this is a tremedious over-all anti-Government power decision and am glad that the conservative majority stuck their necks out to fix the problems inherent at the FEC and McCain-Feingold that limit free speech.

     Justice Steven’s lengthy dissent simply repeats the liberal anti-First Amendment regulatory jargon of years gone by and could have been written Common Cause.  It is valueless.

     Here is the sad news, however.   The CU decision must logically be extended to unions.    Now they can engage in unlimited independent expenditures, too.  The Service Employee’s International Union, which is known as a politically active union in California and one of the biggest spending on lobbying in Sacramento, will be a huge beneficiary of this decision.  Since last Tuesday night, we have heard a refrain here: "if it can happen in Massachusetts, it can happen in California."  But now SEIU can engage in unlimited spending on behalf of one of its key supporters: Barbara Boxer.  I think the SEIU and incumbents like Boxer are huge winners as a result of CU decision, and that potential Republican challengers will not be helped much by the decision.

     In addition, I believe corporate administrative culture in general is more risk adverse than union administrative culture.   Decisions on political spending can be made with hardly any blow-back on career planning in a union, in contrast to a corporation, where a decision-maker might be much more threatened by the consequences to his/her corporate career of a political expenditure being unsuccessful in result.

    Nevertheless, what the First Amendment calls for is a fully level playing field, and now that is what we have in electoral speech.

This entry was posted on Thursday, January 21st, 2010 at 12:00 am and is filed under Blog Posts.