For part one of this analysis, click here.
The Con PositionBefore establishing a suitable Con position I want to lay down some background information in order to establish a context for the ruling which came out of the Citizens United case. What we see is an ever increasingly complex series of regulations which made it more and more difficult for groups to express their political opinion. As the court viewed the maze of rulings, groups were at a disadvantage to determine whether or not their speech would be challenged by the FEC and this was having a repressive effect on free speech. Following the presentation of the background information, this analysis will establish three main contentions for the Con.
The following definition was provided in the Citizens United case:
An Important Definition
An electioneering communication is defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election. §434(f)(3)(A). The Federal Election Commission’s (FEC) regulations further define an electioneering communication as a communication that is “publicly distributed.” 11 CFR §100.29(a)(2) (2009). “In the case of a candidate for nomination for President . . . publicly distributed means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.” §100.29(b)(3)(ii). Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a “separate segregated fund” (known as a political action committee, or PAC) for these purposes. U. S. C. §441b(b)(2). The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union.
Prior to examining the Con position, it is necessary to understand some of the background which ultimately lead to the Citizen United ruling. A series of state laws restricting certain aspects of political speech were being challenged and lost in higher courts. These rulings had the effect of strengthening FEC oversight of political speech which was eventually seen as harming the right to free speech as protected by the first amendment.
The Austin v Michigan State Chamber of Commerce case in 1990 upheld the ban on Corporations spending their general treasury funds for political speech. Corporations were required to pay for their political speech through segregated funds set up for political purposes (the creation of a political action committee).
"On March 27, 1990, the Supreme Court ruled that a Michigan state law prohibiting independent expenditures by corporations was constitutional. Reversing a Sixth Circuit U.S. Court of Appeals decision in Austin v. Michigan State Chamber of Commerce, the Court said that the state could prohibit corporations from using their treasury funds to make independent expenditures in connection with state elections."
The Chamber of Commerce tried to argue the Michigan Law restricting their use of treasury funds violated first amendment free speech rights and fourteenth amendment "equal protection rights" since media corporations were not subject to the same restrictions (newspapers and news corporations could basically say what they want, whenever they wanted). The court did not agree with the Chamber of Commerce.
First Amendment Issue
The Court held that the Michigan law, which permitted corporations to set up segregated political funds, was narrowly tailored to serve the compelling state interest of preventing the distortions in the political process that might result from allowing corporations to spend their general treasury funds to express their political views. "This potential for distortion," the Court said, "justifies §54(1)'s general applicability to all corporations"-regardless of their size or earnings-because all corporations "receive from the state the special benefits conferred by the corporate structure." Thus, the burden imposed on free speech by section 54(1) was permissible. [...]
Fourteenth Amendment Issue
Having clarified that a compelling state interest in preventing corruption justified the restrictions on political activity by corporations, the Court rejected the Chamber's arguments with respect to the application of the prohibition to unincorporated entities. Corporate status, the Court said, was a state-granted privilege that facilitated the amassing of wealth, the source of the threat of corruption.
The Court also affirmed that the limited "media exception" in the state law for news stories and editorials disseminated by corporations operating in any of the news media did not constitute a breach of equal protection because of the unique public informational and educational role that such organizations play. "The media exception ensures that the Act does not hinder or prevent the institutional press from reporting on and publishing editorials about newsworthy events."
Another case, McConnell v FEC add more context to the situation leading up to the Citizen United decision.
In early 2002, a many years-long effort by Senators John McCain and Russell Feingold to reform the way that money is raised for--and spent during-- political campaigns culminated in the passage of the Bipartisan Campaign Finance Reform Act of 2002 (the so-called McCain-Feingold bill). Its key provisions were a) a ban on unrestricted ("soft money") donations made directly to political parties (often by corporations, unions, or well-healed individuals) and on the solicitation of those donations by elected officials; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated expenditures").
In the McConnell case, the US Supreme Court answered "no" to the following questions -
Does the "soft money" ban of the Campaign Finance Reform Act of 2002 exceed Congress's authority to regulate elections under Article 1, Section 4 of the United States Constitution and/or violate the First Amendment's protection of the freedom to speak?
Do regulations of the source, content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First Amendment's free speech clause?
[...]Because the regulations dealt mostly with soft-money contributions that were used to register voters and increase attendance at the polls, not with campaign expenditures (which are more explicitly a statement of political values and therefore deserve more protection), the Court held that the restriction on free speech was minimal. It then found that the restriction was justified by the government's legitimate interest in preventing "both the actual corruption threatened by large financial contributions and... the appearance of corruption" that might result from those contributions.
In response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and Stevens wrote that "money, like water, will always find an outlet" and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits.
The Court also rejected the argument that Congress had exceeded its authority to regulate elections under Article I, Section 4 of the Constitution. The Court found that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for state and local elections.
The Austin and McConnell decisions became the basis of many state laws rejecting attempts by corporate and union entities from engaging in "electioneering communication" and restricted the funding sources for any such political speech with the exception of media corporations, because of their "unique public informational and educational role". Additionally, because of the wording in the McCain-Feingold act, congress assumed power to regulate "express advocacy" aimed at candidates within 60 days of a general election. This "express advocacy" was distinct from "issue advocacy" directed to issues as opposed to candidates. This power then became challenged in the Wisconsin Right to Life v FEC case.
Wisconsin Right to Life (WRTL), a nonprofit political advocacy corporation, ran three advertisements encouraging viewers to contact two U.S. Senators and tell them to oppose filibusters of judicial nominees. WRTL intended to keep running the ads through the 2004 election, but the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibits corporate funds from being used for certain political advertisements in the 60-day period prior to an election. WRTL sued the Federal Election Commission (FEC), claiming that the BCRA was unconstitutional as applied to the advertisements. In 2006, the Supreme Court let the "as applied" challenge proceed (see Wisconsin Right to Life v. Federal Election Commission, 04-1581). In McConnell v. Federal Election Commission, the Court had upheld Congress's power to regulate "express advocacy" ads that support or oppose political candidates, but WRTL claimed that its ads were "issue ads" rather than express advocacy. WRTL also argued that the government lacked a compelling interest sufficient to override the corporation's First Amendment free speech interest. The FEC countered that WRTL's ads were "sham issue ads," which refrain from explicitly endorsing or opposing a candidate but are intended to affect an election.
The Court ruled the WRTL ads were legitimate "issue ads". It appears the ruling signalled a shift in the thinking of the court toward guarding against excessive censorship of speech under the guise of limiting "electioneering communication".
Chief Justice John Roberts's majority opinion held that the ads were genuine issue ads, not express political advocacy or its functional equivalent (which Congress can concededly regulate). The Court held that McConnell v. FEC did not establish the test that any ad intended to influence an election and having that effect is express advocacy. Such a test would be open-ended and burdensome, would lead to bizarre results, and would "unquestionably chill a substantial amount of political speech." Instead, the Court adopted the test that "an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court further held that the compelling state interests invoked by the government to regulate advocacy did not apply with equal force to genuine issue ads. Neither the interest in preventing corruption nor the goal of limiting the distorting effects of corporate wealth was sufficient to override the right of a corporation to speak through ads on public issues. This conclusion, the Court held, was necessary in order to "give the benefit of the doubt to speech, not censorship." The dissent by Justice Souter called WRTL's ads indistinguishable from political advocacy ads and accused the majority of implicitly overruling McConnell v. FEC.
When Being Chill is Not CoolPrior to Citizens United, a complex and confusing series of laws had been passed regulating political speech. Because organizations and corporations were not willing to face legal challenges from the FEC over their political communication, the obvious remedy would be to submit their political ads or campaign ideas to the FEC for prior approval. SCOTUS (Supreme Court of the United States) felt the maze of complex laws and the excessive regulatory power of the FEC was having a "chill" effect on free speech. Some organizations with-held their speech rather than face potential legal action from the FEC. Indeed, Justice Kennedy, writing in the majority opinion of Citizens United v FEC clarified the court opinion.
"This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. Cf. Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712–713 (1931). As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. See 2 U. S. C. §437f; 11 CFR §112.1. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.
[...] Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U. S. 51, 57–58 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U. S. 113, 119 (2003) (citation omitted). Consequently, “the censor’s determination may in practice be final.”
While the court recognizes some limitations of free speech, there must be compelling reason to enact bans and any law which attempts to restrict speech content (as "political speech" defines the content of the communication) without meeting those compelling burdens will be subject to strict scrutiny. One such burden is the "clear and present danger" test defined in Schenk v US and discussed in the previous part of this analysis (The Pro Position). The court saw the restriction of corporate speech as an outright ban on free speech and did not see adequate relief from the ban provided by the fact corporations could form PACs.
The Right to Speak
Section 441b is a ban on corporate speech notwithstand ing the fact that a PAC created by a corporation can still speak. See McConnell, 540 U. S., at 330–333 (opinion of KENNEDY, J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. [...] PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs.
Since the court determined that independent PACs did not provide a legitmate avenue for corporate speech, the court addressed what it viewed as a ban on speech.
As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quantity of expression by restrict ing the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. See McConnell, supra, at 251 (opinion of SCALIA, J.) (Government could repress speech by “attacking all levels of the production and dissemination of ideas,” for “effective public communication requires the speaker to make use of the services of others”). If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.
As a strike against the Austin v FEC cases differentiating media from other forms of corporate speech, the court expressed its opinion.
Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.
In the opinion of the court, it cited many precedences which established that first amendments rights extended to corporations.
Corporations are People Too
Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 8 (1986) (plurality opinion) (“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783)). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”
For links to other Public Forum debate topics, click here.
Federal Election Commission Records
(Good summary of court decisions involving the FEC with links to PDFs)
FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TOLIFE, INC. (Nos. 06-969 and 06-970) 466 F. Supp. 2d 195, affirmed.
Oyez, Chicago-Kent College of Law
McConnell v Federal Election Commission
Oyez, Chicago-Kent College of Law
WRTL v FEC
SUPREME COURT OF THE UNITED STATES
CITIZENS UNITED v. FEDERAL ELECTION COMMISSION APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
No. 08–205. Argued March 24, 2009—Reargued September 9, 2009––
Decided January 21, 2010