…by Meg White
The place Meg puts the stuff she wrote
Supreme Court to Hear Key Case on Corporate Speech in Elections

by Meg White

The very first case to come before newly-minted Supreme Court Justice Sonia Sotomayor might make the astronomic amounts of money spent on the 2008 presidential election campaign look like pocket lint. Worse, corporate influence on elections could grow exponentially, with virtually every constitutional check on its expansion eliminated.

Ostensibly, Citizens United v. FEC is about that anti-Hillary Clinton movie a 501(c)(3) organization tried to run during primary season last year. Citizens United wanted to offer Hillary: The Movie for free on television using a cable on-demand service. But when they tried to advertise the movie, the Federal Elections Commission (FEC) ruled that they would have to disclose their corporate sponsors. Citizens United appealed the decision all the way to the Supreme Court twice.

Many are quick to point out that legislation governing such activity stretches back more than a century to the Tillman Act. But really, this case reaches back even further in time to the infamous 1886 Supreme Court case of Santa Clara County v. Southern Pacific Railroad. In that case corporations were granted the status of “natural persons” as defined by the 14th Amendment that protected the rights of freed slaves.

Legislators once held strict control over corporate charters and limited the power of corporations via both federal and local laws. Those laws have been continuously stripped away over the years, and this case is another crucial layer in the onion, as it were.

Now these corporations are trying to exercise their First Amendment rights as “natural citizens.” Of course, they don’t want to vote, they want to be able to throw more money at candidates (something of a sad statement on the efficacy of the ballot box, no?). In this case, Corporate America is challenging the constitutionality of the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold. Citizens United v. FEC is not the first time they’ve tried this, but it appears to stand the best chance yet at success.

Back in March when Citizens United was last before the famous mahogany bench, the Supreme Court ordered that rearguments take place on Sept. 9 addressing whether two key precedents in campaign finance reform challenges should be overturned. These cases, Austin v. Michigan Chamber of Commerce and McConnell v. FEC, were cited by a three-judge panel on a lower court to rule against Citizens United, causing the group to appeal to the Supreme Court.

The call for rearguments was an unusual move by the court, one which law professor Rick Hasen sees as a hint that campaign finance reform may be overruled in September:

They may not have wanted to take the plunge on Justice Souter’s last day on the court. He has been an ardent defender of [campaign finance] laws. Perhaps more to the point, Justice Alito, in two campaign-finance cases, has said that he would not consider revisiting old campaign-finance precedent until the issue was squarely before the court and briefed. In other words, Alito wants a full airing of the issues before taking such a momentous step.

E.J. Dionne wrote about the case in The Washington Post, calling the request for additional briefs “a remarkable exercise of judicial overreach… extreme (and, yes, activist).” He also posed a very important question:

In the deregulatory wave of the 1980s and ’90s, Congress was clearly too solicitous to the demands of finance. Why take a step now that would give corporations even more opportunity to buy influence?

To be clear, the case does not challenge the entirety of McCain-Feingold, but a certain section of it. Section 203 is often misconstrued as stopping corporations from donating money to political campaigns. In reality, this provision ensures that corporate money cannot be spent on “electioneering communications” designed to stump for or against a specific candidate, barring “the use of those funds to finance communications that refer to a clearly identified candidate for the presidency or for Congress, on radio, television, cable TV or satellite broadcast, within 30 days before a primary election or nominating convention, or within 60 days before a general election.”

In the 2003 McConnell decision, the court upheld the wording in that section as constitutional, therefore the inclusion of McConnell in the call for rearguments constitutes a significant challenge.

This case has made strange bedfellows. While the challenge is ostensibly about the rights of the businesses, unions and non-profits, the argument is a specifically corporate one.

Jeff Milchen, co-founder of the American Independent Business Alliance called it “maddening” that the media would label the case as “pro-business:”

Pro-Wal-Mart and Goldman Sachs maybe, but overturning these precedents would be radically anti-business when viewed from the perspective of America’s 6 million or so independent businesses.

The American Independent Business Alliance joined several citizens groups and the authors of the campaign finance legislation in filing friend-of-the-court, or amicus briefs supporting the FEC’s stance. On the other hand, Citizens United had a larger pile of amici, with some pretty disparate groups in the mix.

Citizens United ACLUWhile it may not be a huge surprise that the American Civil Liberties Union (ACLU) would support Citizens United’s side, it does make for an amusing contrast. Pictured to the left is a partial screenshot of Citizens United’s homepage (click on the image to enlarge), where they advertise both the fact that the ACLU filed a brief in support of their case, and also their movie which insists that “the ACLU has for decades been at war, both legally and intellectually, with the fundamental rights and values of our nation.”

Still, the ACLU filed its amicus brief arguing that McCain-Feingold’s “prophylactic ban on ‘electioneering communications’ threatened speech that lies at the heart of the First Amendment, including genuine issue ads by nonpartisan organizations like the ACLU” as well as partisan ones such as Citizens United.

The real-world implications of this case are scary. In a press release accompanying an amicus brief filed by four advocacy groups on behalf of the FEC, lawyers predict that if the Supreme Court overturns the established law, “First Amendment rights claimed by corporations will be significantly expanded, and local, state, and federal governments will be further restricted in the ability to regulate corporations and corporate influence on our democratic processes.”

Even the Supreme Court itself, via its SCOTUS Wiki, admits that the case “has broader implications, potentially leading to a major alteration of constitutional law in this field.”

Both reply briefs were due Aug. 19 and are available online. So one could reasonably assume that the justices (or their clerks at least) have been looking over them.

It’s clear lawyers for Citizens United have been looking at them. Their reply brief suggests that the FEC is willing to lose its case in order to preserve the precedent of Austin and McConnell. The brief argues that the FEC’s reply brief‘s insistence that “it is only the political speech of ‘for-profit corporations’ that poses ‘distinct risks’ of corruption” is merely a lame attempt to “shield Austin and McConnell from scrutiny” that ultimately will not work.

Whether or not that’s the case, I cannot say, not being a lawyer.

But I do find Citizens United’s reply brief argument “that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages paid for by [campaign supporters] can hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of varying points of view” a reprehensible distortion of the electoral process. “Campaign supporters” in the case being cited here are citizens, and the ultimate support they lend is their vote. Corporations are not allowed a vote, and are not singularly represented in Congress for a reason.

Although there’s no way to know how the court will rule, there are some hints. Justice Steven Breyer indicated earlier that he would have upheld the lower court decision when the court summarily dismissed an earlier appeal by Citizens United due to lack of jurisdiction in March 2008.

In an analysis on the SCOTUS Wiki, Lyle Denniston writes that Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy have all expressed support for basically ruling Section 203 unconstitutional, noting, “That might leave just one more vote to be gathered — that of a perhaps sympathetic Chief Justice John G. Roberts, Jr. — to work a profound change in the constitutional law of campaign finance.”

Denniston concludes that the outcome may rely on the advocacy displayed in court on Sept. 9, which is incidentally nearly a full month before the court officially comes back into session. He also makes specific note of the legal help upon which Citizens United is depending:

Citizens United, it should be noted, turned to seasoned Court advocate Theodore B. Olson, former U.S. Solicitor General and a principal legal architect of President George W. Bush’s legal fight in winning the 2000 election, to do its merits brief, and for the oral argument.

The government, on the other hand, may have more of a problem on its hands. Professor Hasen wrote at his Election Law Blog that “it is no exaggeration to say that had [Deputy Solicitor General Malcolm] Stewart not made some of the comments he made, this case might have already been decided on narrow statutory grounds.” Hasen also said that this case should not be Solicitor General Elena Kagan’s first appellate argument.

If the job of oral arguments does fall to Kagan, I hope she’s studying harder than Alito’s clerk. Because if this obscure little case gets bungled by the government, Hasen predicts “we may well look back on the 2008 election as a quaint time when the amounts spent on elections were relatively modest. Expect the floodgates to open, and the money to flow freely, as early as next year.”


Originally published at BuzzFlash.com.

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