January 22, 2010
Ruling on Spending May Alter Political Terrain
By ADAM LIPTAK
WASHINGTON — Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.
The ruling was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said allowing corporate money to flood the political marketplace will corrupt democracy.
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.”
Justice John Paul Stevens read a long dissent from the bench. He said the majority had committed a grave error in treating corporate speech the same as that of human beings. His decision was joined by the other three members of the court’s liberal wing.
Senator Russ Feingold of Wisconsin, an author of the McCain-Feingold campaign finance law, called the ruling “a terrible mistake.”
“Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns,” said Mr. Feingold, a Democrat.
Senator Mitch McConnell of Kentucky, the Republican leader and a longtime opponent of that law, praised the Court’s decision as “an important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day.”President Obama issued a statement calling on Congress to “develop a forceful response to this decision.”
“With its ruling today,” he said, “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.”
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.
The lower court said the Bipartisan Campaign Reform Act of 2002, usually called the McCain-Feingold law, prohibited the planned broadcasts. The law bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. That leaves out old technologies, like newspapers, and new ones, like YouTube.
The law, as narrowed by a 2007 Supreme Court decision, applies to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” It also requires spoken and written disclaimers in the film and advertisements for it, along with the disclosure of contributors’ names.
The lower court said the film was a prohibited electioneering communication with one purpose: “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”
The McCain-Feingold law does contain an exception for broadcast news reports, commentaries and editorials.
On its central point, Justice Kennedy’s majority opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr., and Clarence Thomas. Justice Stevens’s dissent was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.
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.
On Thursday, the court answered its own questions with a resounding yes.
Quick summary for non-Americans: for basically 100 years, the first amendment (freedom of speech) did not strictly apply to corporations (which are technically considered a person under the law for most other things). This meant their ability to proselytize politically was very limited: they could not donate money to political campaigns. Now they can, with no limits.
At what point do we simply decide that “democracy” and our fabled “separation of powers” have utterly failed us as a nation? Conservatives have railed against “activist judges” and yet their own appointed justices just throw out laws with a hundred years of precedent with hardly a second thought to benefit their buddies. With every passing day, I feel more and more like America is moving towards China rather than the other way around in terms of freedom and human rights. Though to be honest, if I had to choose between a relatively left-leaning political elite with an unfortunate Machiavellian streak or a complete and total corporatocracy, I think I’d rather choose the former.