Back in June, I warned you that the Supreme Court of the United States was set to overturn all restrictions on election-related speech funded by corporations and labor unions. Rather than rule on the original briefs and narrow question presented to the Court as to the application of the Bipartisan Campaign Reform Act (a/k/a BCRA, or “McCain-Feingold”), the Court asked for new briefing and argument on the broader question of whether a 1990 precedent, Austin v. Michigan Chamber of Commerce ought to be overturned. This was in the context of a documentary, “Hillary: The Movie,” which was intended to air in video-on-demand and other formats during last year’s primaries, and which was funded by a conservative nonprofit corporation, Citizens United. (Full background.)
[Austin, as you may recall, held that a state could bar corporations from financing independent ads in support of a candidate's election, arguing that "the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption" such that "resources amassed in the economic marketplace [could be used to obtain] an unfair advantage in the political marketplace” because, as the Court has noted: “[t]he resources in the treasury of a business corporation . . . are not an indication of popular support for the corporation’s political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.”]
Well, they had that reargument Wednesday morning — Justice Sotomayor’s first seating with The Nine — and by all accounts, expect Austin to be overturned:
Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.
That lineup has always put the focus, as the Court volunteered to take on new constitutional questions in the Citizens United case, on the Chief Justice and Justice Alito. While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections. None of those arguments seemed to appeal to either Roberts or Alito….
Stevens and Ginsburg continually pressed for a narrow ruling, perhaps allowing Citizens United free rein to distribute the “Hillary” movie and relaxing curbs on other non-profit corporations. Stevens openly touted a brief filed by the National Rifle Association, which proposed — as an alternative to overruling the two precedents — that corportions that get their funding entirely from individual donors be exempted from the spending curbs. Ginsburg used many of her questions and comments to argue strenuously for treating corporations differently from individuals in political expression. She remarked: “A corporation, after all, is not endowed by its creator with inalienable rights.”
Justice Breyer commented several times how important it was for the Court to defer to Congress’s judgment about what is necessary to insulate federal politics from wrongful influences. What, he asked rhetorically, should the Court do about the reality that “people think that their Representatives are being bought”? Wasn’t that a sufficient interest to justify the restrictions, he wondered. Breyer also questioned whether a ruling all.owing corporate political spending would give businesses more influence in politics than political parties have, because of limits on their campaign financing.
The oral argument transcript is here. This is the first portion to jump out at me — from Solicitor General Elena Kagan’s defense of BCRA, in her first oral argument before any Court:
JUSTICE ALITO: [W]hat is your answer to the argument that more than half the States, including California and Oregon, Virginia, Washington State, Delaware, Maryland, a great many others, permit independent corporate expenditures for just these purposes? Now have they all been overwhelmed by corruption? A lot of money is spent on elections in California; has — is there a record that the corporations have corrupted the political process there?
GENERAL KAGAN: I think the experience of some half the States cannot be more important than the 100-year old judgment of Congress that these expenditures would corrupt the Federal system, and I think that -
JUSTICE SCALIA: Congress has a self-interest. I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.
GENERAL KAGAN: I think, Justice Scalia, it’s wrong. In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done. If you look — if you look at the last election cycle and look at corporate PAC money and ask where it goes, it goes ten times more to incumbents than to challengers, and in the prior election cycle even more than that.
And for an obvious reason, because when corporations play in the political process, they want winners, they want people who will produce outcomes for them, and they know that the way to get those outcomes, the way to get those winners is to invest in incumbents, and so that’s what they do. As I said, in double digits times more than they invest in challengers. So I think that that — that that rationale, which is undoubtedly true in many contexts, simply is not the case with respect to this case.
JUSTICE KENNEDY: But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and shareholders what the policy ought to be, some other corporation can’t object to that during the election cycle. The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject.
Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.
GENERAL KAGAN: Well -
JUSTICE KENNEDY: When other corporations, via — because of the very fact you just point out, have already been used and are being used by the government to express its views; and you say another corporation can’t object to that.
GENERAL KAGAN: Well, to the extent, Justice Kennedy, that you are talking about what goes on in the halls of Congress, of course corporations can lobby members of Congress in the same way that they could before this legislation. What this legislation is designed to do, because of its anticorruption interest, is to make sure that that lobbying is just persuasion and it’s not coercion. But in addition to that, of course corporations have many opportunities to speak outside the halls of Congress.
JUSTICE STEVENS: One of the amicus briefs objects to — responds to Justice Kennedy’s problem by saying that the problem is we have got to contribute to both parties, and a lot of them do, don’t they?
GENERAL KAGAN: A lot of them do, which is a suggestion about how corporations engage the political process and how corporations are different from individuals in this respect. You know, an individual can be the wealthiest person in the world but few of us — maybe some — but few of us are only our economic interests. We have beliefs, we have convictions; we have likes and dislikes. Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.
CHIEF JUSTICE ROBERTS: Well, that’s not –I’m sorry, but that seems rather odd. A large corporation just like an individual has many diverse interests. A corporation may want to support a particular candidate, but they may be concerned just as you say about what their shareholders are going to think about that. They may be concerned that the shareholders would rather they spend their money doing something else. The idea that corporations are different than individuals in that respect, I just don’t think holds up.
GENERAL KAGAN: Well, all I was suggesting, Mr. Chief Justice, is that corporations have actually a fiduciary obligation to their shareholders to increase value. That’s their single purpose, their goal.
And many here will be intrigued by the implications of this question from Justice Sotomayor:
Going back to the question of stare decisis, the one thing that is very interesting about this area of law for the last 100 years is the active involvement of both State and Federal legislatures in trying to find that balance between the interest of protecting in their views how the electoral process should proceed and the interests of the First Amendment.
And so my question to you is, once we say they can’t, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.
Some color from Prof. Allison Hayward:
New seat assignments – and Scalia and Thomas get to sit together, Chief Justice Roberts next to Scalia. Justice Breyer, now on the viewer’s right, demonstrated that he can brace his head in worried angst with his left hand as well as his right. Idle speculation preceding the argument was that his right hand would dominate, and he would end up addressing Justice Sotomayor, and the wall. This did not occur, to everybody’s great relief.
[The Court goes Chief in the middle, and then by seniority fanning outwards. So from viewers' left to right, it's now Alito-Ginsburg-Thomas-Scalia-Roberts-Stevens-Kennedy-Breyer-Sotomayor.]
As for the merits, yes, I’m stalling, because I’m torn. I would certainly agree that increased corporate spending to influence elections has the potential to seriously distort electoral outcomes in the same ways that spending on lobbying affects legislative outcomes. But at the same time, I can’t help but cringe at any efforts to chill political speech.
The Bill of Rights can be pretty clear when it wants to be — the Second Amendment protects the right of “the people” to keep and bear arms; “citizens” have privileges and immunities under the Fourteenth Amendment, and even within the First Amendment “the people” have the right peaceably to assemble. But there’s no such limitation as to who has “freedom of speech”. It exists to protect the speaker’s right to speak and our rights as citizens to be informed, and I find much to commend in Justice Kennedy’s dissent from Austin:
[T]he notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections is antithetical to the First Amendment:
“[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed `to secure “the widest possible dissemination of information from diverse and antagonistic sources,”‘ . . . . The First Amendment’s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion.” Buckley, supra, at 48-49 (citations omitted).
That those who can afford to publicize their views may succeed in the political arena as a result does not detract from the fact that they are exercising a First Amendment right. Meyer v. Grant, 486 U.S., at 426 , n. 7 (upholding First Amendment right to use paid petition circulators). As we stated in Bellotti, paid advocacy “may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it.” The suggestion that the government has an interest in shaping the political debate by insulating the electorate from too much exposure to certain views is incompatible with the First Amendment. “[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.”
Those of you who recall my take on the Supreme Court’s 2008 gun control case should not be surprised that I will say this again:
Sometimes in life (and in law), there are things that we might desire from a policy standpoint — like certain forms of gun control, or restrictions on some election-related speech — which are nevertheless forbidden by the Constitution. And as liberals — unlike the other guys — we ought not try to pretend that the Constitution doesn’t exist when it gets in the way of our policy preferences.
The answer may not be in limiting the speech of some, but in boosting the speech of others through voluntary public financing of public elections. Rep. John Larson (CT-01), today:
The hearing before the Supreme Court today is further evidence of how broken our campaign finance system is and how badly we need true reform. Today, Members of Congress are forced to spend too much time dialing for dollars. This distracting hunt for campaign contributions takes us away from the real reason we came to Washington – to do the people’s business.
That is why I authored the Fair Elections Now Act – comprehensive reform that would give candidates and Members of Congress alike an opportunity to concentrate on talking to constituents rather than donors and studying issues rather than call sheets. FENA would be exempt from the constitutional challenges that have been raised against the McCain-Feingold campaign finance reform law. It would offer candidates the choice of accessing public funds for their campaigns if they reach a certain threshold of support and forego big dollar fundraising in exchange for the sort of grassroots small donor efforts we saw Barack Obama use so successfully in his presidential campaign.
By taking the special interests and corporations out of our electoral process we would put the American people back in charge. We heard that from experts at our hearing on FENA before the House Administration Committee and we’ve seen that example as states around the country have implemented their own Fair Elections systems. Today’s hearing at the Supreme Court reaffirms my support for the Fair Elections Now Act and I will continue to work to bring the bill for a vote on the floor of the House.
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