Supreme Court Overturns Corporate Advertising Ban

In a landmark decision, the Supreme Court today ruled that the right of corporations to engage in political speech, including campaign and issue advertising,  is protected by the First Amendment.

AP, “Justices Block Key Part of Campaign Law

The Supreme Court threw out a 63-year-old law designed to restrain the influence of big business and unions on elections Thursday, ruling that corporations may spend as freely as they like to support or oppose candidates for president and Congress. The decision could drastically alter who gives and gets hundreds of millions of dollars in this year’s crucial midterm elections.

By a 5-4 vote, the court overturned two of its own decisions as well as the decades-old law that said companies and labor unions can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision threatens similar limits imposed by 24 states.

It leaves in place a prohibition on direct contributions to candidates from corporations and unions.

[…]

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

Adam Liptak, NYT, “Justices Overturn Key Campaign Limits

The 5-to-4 decision represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision, which also applies to labor unions and other organizations, to reshape the way elections are conducted.

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

[…]

The case had unlikely origins. It involved a documentary called “Hillary: The Movie,” a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008.

Citizens United lost a suit that year against the Federal Election Commission, and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet.

[…]

When the case was first argued last March, it seemed a curiosity likely to be decided on narrow grounds. The court could have ruled that Citizens United was not the sort of group to which the McCain-Feingold law was meant to apply, or that the law did not mean to address 90-minute documentaries, or that video-on-demand technologies were not regulated by the law. Thursday’s decision rejected those alternatives.

Instead of deciding the case in June, the court set down the case for a rare re-argument in September. It now asked the parties to address the much more consequential question of whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates, along with part of McConnell v. Federal Election Commission, the 2003 decision that upheld the central provisions of the McCain-Feingold campaign finance law.

Kenneth Vogel, Politico, “Court decision opens floodgates for corporate political spending

The Supreme Court on Thursday opened wide new avenues for big-moneyed interests to pour money into politics in a decision that could have a major influence on the 2010 midterm elections and President Barack Obama’s 2012 reelection campaign.

The long-awaited 5-4 decision overruled all or parts of two prior rulings by the court that allowed governments to restrict corporations and unions from spending their general funds on ads expressly urging a candidate’s election or defeat. But the decision upheld disclosure requirements for groups like the one that brought the case.

The decision, handed down in a special session of the court, is generally expected to boost Republicans more than Democrats, because corporations and corporate-backed outside groups tend to align with conservatives and also often have access to more money than unions or liberal outside groups.

Such assessments are quite premature.   The ban on soft money contributions was expected to greatly advantage the Republicans, too, and wound up hampering John McCain, the major Republican sponsor of the bill, in his bid for the presidency.   The parties and the campaigns always find clever new ways to circumvent the rules and, for a variety of reasons, the Democrats — and especially the Obama campaign — were much better at adapting to the new system last go-round.

President Obama has already issued a denunciation of the ruling.

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.  This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates.  That’s why I am instructing my Administration to get to work immediately with Congress on this issue.  We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision.  The public interest requires nothing less.

But the Court ruled widely on a Constitutional principle, rather than issuing a narrow statutory interpretation.  Any attempt to get around the ruling by statutory means is likely to be met swiftly and harshly.  So, it’ll be interesting to see how the Democrats try to craft response legislation.

Dahlia Lithwick is peeved by the ruling, which she dismisses as “judicial activism” because “[t]he court had to reach out far beyond any place it needed to go to strike down century-old restrictions on corporate spending in federal elections.”

So Kennedy doesn’t really find his voice today until he gets to the fist-pounding bits: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens, for simply engaging in political speech.” “The censorship we now confront is vast in its reach.” And: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

As Stevens says in reading his dissent, none of that has anything to do with the court’s decision to topple decades’ worth of legal architecture that had never been questioned in the courts. And Kennedy’s visceral terror of speech bans (the word “ban” appears 29 times in his 57-page opinion) and “censorship” seems to override any sort of temperate assessment of either the facts of the case before him, the lack of substantial record in the lower courts, the significance of the cases he is overruling, or the consequences of today’s opinion.

But the Court clearly signaled it was going to do this upon re-argument.  And, presumably, lawyers petitioning the Court are loathe to challenge establish High Court precedent, preferring instead to find narrower grounds to plead their case.

She’s also unhappy with the expansion of the age-old fiction of corporate personhood.

Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is “to confuse metaphor with reality.” Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.

No, corporations are not literally people and there are some obvious differences in how they’re handled.  For the most part, though, corporations and organizations are simply collections of citizens organized for various purposes.   The idea that  shouldn’t be allowed to run advertising against candidates seeking to do harm to their interests is outrageous.  So, too, is the notion that their ads are more likely to win over voters than any of the hundreds of competing ads.

Rick Hasen makes a rather odd argument:

Though the decision deals with federal elections, expect state and local corporate and union spending limits to be challenged, and to fall, throughout the country. There are many responses to Justice Kennedy’s reasoning. He wrongly assumes that corporations or unions can throw money at public officials without corrupting them. Could a candidate for judicial office, for example, be swayed to rule in favor of a contributor who donated $3 million to an independent campaign to get the candidate elected to the state supreme court? Justice Kennedy himself thought so in last year’s Caperton case. And yet he runs away from that decision in today’s ruling.

The Court has let stand limits on candidate donations, though.   And, frankly, it would be easy enough for courts to craft a rule requiring judges to recuse themselves from hearing cases where either party was a contributor — certainly, where either party had donated large sums.

It left in place one requirement: that the corporate and union groups unleashing the attack ads have to disclose who they are (and for that, Kennedy had everyone’s vote but Justice Thomas’.) But given the history of money and elections, why should we think that disclosure alone will be enough to deal with the problems of corruption and inequality that threaten our government?

But those are problems without a solution. You and I don’t have the same access to or influence over my Representative, Senators, or President that organized interests do and we never will. Beyond the fact that they have much more ability to give money and influence voters, the mere fact that they’re organized makes it easier for them to claim to represent large numbers.  The laws overturned today were never going to substantively change any of that.

Beyond that, Congress’ purported rationale for nearly four decades worth of campaign finance law has been to get the appearance of corruption out of the system.  But, as we’ve seen time and again, money continues to flow in ever larger amounts — probably because government’s reach has expanded so vastly over the years.  So, to the extent that political speech is achieved by spending money on television advertising — and thus protected by the 1st Amendment — it’s hard to argue that a “compelling interest” that’s not being achieved or likely to ever be achieved is worthy rationale.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. PD Shaw says:

    I have to admit that I previously thought the notion that the court was going to overrule this ban was a bit overwrought because there were narrower grounds to allow a pay-for-movie movie on Hillary Clinton. And part of the reason, I was wrong was that this wasn’t going to be pay-for-view, but video-on-demand with the presentation paid for in advance by the corporation.

    But it’s worth remembering that the government’s lawyer in the first argument agreed that the government could ban books (not under McCain/Feingold) under the principles being espoused. Either the lawyer screwed up by making a mistake or by telling the truth.




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  2. Michael Reynolds says:

    The real winners are TV station owners. Especially in Iowa, Boston (N.H.), South Carolina.




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  3. PD Shaw says:

    It may also be worth considering that there are at least two types of judicial minimalism.

    The first is where the courts have overruled a law in such a way that prohibits the political branches from legislating on a topic. That’s Hassan’s beef.

    The second is where the courts are placed in a situation to regularly engage in vital decisions of the day. The majority argues that under the case being overturned today, politicians could have banned the distribution of Mr. Smith Goes to Washington. The dissent shrugs that the courts can tell the difference between art and political advocacy. Which may be true, but there is a lot of gray area in-between. Because of the importance of elections and free speech, I believe the majority fears the judiciary being thrust into difficult, politically-charged questions about whether something is the “functional equivalent of express advocacy.” (The government lawyer appeared to argue that the government could ban a book that had one sentence of express advocacy) So in this sense, the court has removed the judiciary from politics and refereeing the acceptable parameters of communication in the 30 to 60 days prior to an election.




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  4. PD Shaw says:

    Wait a minute, Michael, aren’t you a corporation now? Shouldn’t you be rejoicing?




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  5. sam says:

    Pop Quiz: What recent decision of SCOTUS renders the following suspect? Fill in the blank.

    “Because of the importance of elections…, I believe the majority fears the judiciary being thrust into difficult, politically-charged questions like _______________.”

    (Relax, PD, it’s a joke. Or maybe not.)




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  6. Brett says:

    Christ. As if elections weren’t expensive enough, now corporations can spend unlimited amounts of cash promoting not just issues but candidates, even if they can’t just give the money to the candidates directly.

    Expect a great deal more political commercial spam on tv come late 2010 and 2012.




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  7. sam says:

    The idea that shouldn’t be allowed to run advertising against candidates seeking to do harm to their interests is outrageous.

    I’m looking forward to the corporate ads contra the Tea Partiers. Those’ll be fun.




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  8. sam says:

    BTW, isn’t the flip of this

    The idea that shouldn’t be allowed to run advertising against candidates seeking to do harm to their interests is outrageous.

    just saying that the Court has legitimized rent-seeking?




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  9. PD Shaw says:

    sam, my corporate benefactors and I will simply hunt you down, and disclose, through wall-to-wall coverage on the home shopping network, every misplaced statement you’ve entered on the blogosphere. We specialize in typos and misplaced commas.

    So, tell me, do you feel lucky? Do you always spell Massachusetts correctly?

    FREEDOM!!!




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  10. PD Shaw says:

    Do people really think this is going to make a big difference? Right now, I’m listening to wall-to-wall ads for the primaries. Most of it seems annoying because the ads are insipid. Would more corporate money raise the quality? Would it make the Jay Leno show more palatable?

    I understand the concern of wealth crowding out other viable messages, but big corporations have money to pay people a lot of money to get that message out. And the ban thirty to sixty days before an election just seems to have problems with enforcement. How many groups have been fined after the ballot box closed?




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  11. PD Shaw says:

    but big corporations have money to pay people a lot of money to get that message out.

    I’m not sure this statement is clear. How concerned should we be about AIG buying time when it distributes a billion dollars in bonuses to employees who are unaffected by the ban?




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  12. sam says:

    Do you always spell Massachusetts correctly?

    I lived there for 40+ years, I was forced to learn how. (But we cheated most of the time, e.g., “Where on Mass Ave did you pass out?”)




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  13. Michael Reynolds says:

    PD:

    I’m going to run attack ads against Stephanie Meyer.




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  14. PD Shaw says:

    michael, I have it on good word that Antonin Scalia does not consider Twilight to be protected speech under the Constitution. His wife is a fan though.

    sam, many of my ancestors came to this country through Massachusetts and couldn’t spell their own names, so buck up.




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  15. steve says:

    What we are really talking about is people being able to use corporations, and their special protections, to promote political points of view. Under the corporate shield, officers and shareholders have limited liability for their activities. We, in effect, subsidize corporations, or rather, those who work for or own corporations. (Think pollution issues as an example).

    I am unhappy about having to subsidize political speech by others because they are able to do it through a corporation. If they have the same rights, they should have the same liabilities.

    Steve




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  16. Fear 7 Trembling on the Campaign Trail says:

    You and I don’t have the same access to or influence over my Representative, Senators, or President that organized interests do and we never will. Beyond the fact that they have much more ability to give money and influence voters, the mere fact that they’re organized makes it easier for them to claim to represent large numbers.

    As the sage Homer Simpson once said, Democracy just doesn’t work.




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  17. Brett says:

    As the sage Homer Simpson once said, Democracy just doesn’t work.

    That was Kent Brockman. Of course, since he’s a secret Insect loyalist, you can’t trust him.




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  18. Rick DeMent says:

    No, corporations are not literally people and there are some obvious differences in how they’re handled. For the most part, though, corporations and organizations are simply collections of citizens organized for various purposes. The idea that shouldn’t be allowed to run advertising against candidates seeking to do harm to their interests is outrageous.

    what is outrageous is the idea that modern corporations are nothing like the very limited institutions the founders envisioned, that they at their current form through a perversion of an amendment to the constitution that was never envisioned by those who wrote it through court action. Gain even more power through court action to break from the control of state governments rendering them impervious to control from anything but the federal government. And now any pretense of one man, one vote has been eviscerated by the wholly ludicrous doctrine of “money=speech”. The only good thing about this is that we will never have to hear anymore nonsense about “liberal judicial activism” original intent/understanding or strict constructionism again, thanks to this to this POS that SCOTUS calls a ruling.

    But Dr. Joyner is right, not much will change as corporations already own government in ways most people can scarcely imagine. Good luck with your anti-government populism.




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