Using the Constitution

Using the Constitution to Destroy Free Speech - Citizens United v. FEC

By Jeremy Rovinsky

In Citizens United v. Federal Election Commission, the Supreme Court considered the impact of legislation restricting corporate political speech by looking to public policy and previous case law, finding that “[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” Citizens United v. Fed. Election Comm’n, No. 08-205, slip op. at 1-2 (U.S. Jan. 21, 2010).

This case began in December 2007 when Citizens United, a nonprofit corporation, brought a motion for a preliminary injunction in the United States District Court for the District of Columbia seeking declaratory and injunctive relief against the Federal Election Commission. Citizens had released Hillary: The Movie, a documentary attempting to persuade people to vote against Hillary Clinton, and wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary elections. Id. at 2, 4, 8.

Citizens argued against the constitutionality of 2 U.S.C. 441b, which imposes criminal sanctions on corporations and unions expressly advocating the election or defeat of a political candidate through the media, and, after amended under the Bipartisan Campaign Reform Act of 2002 (BRCA), also prohibits “electioneering communication” – television communication referring to a candidate for Federal office within 30 days of a primary or 60 days of a general election. Id. at 3-4, 20. The District Court denied the motion for a preliminary injunction and granted FEC’s motion for summary judgment, holding that 441b was both facially constitutional and constitutional as applied to Hillary, not providing much analysis concerning the facial challenge because it felt constrained by the controlling authority of Austin v. Michigan Chamber of Commerce, prohibiting corporate speech before an election. Id. at 4-5, 13.

Citizens appealed to the Supreme Court, challenging the constitutionality of Austin. Id. at 5, 13. The Supreme Court found it necessary to overrule Austin: “We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker’s corporate identity.” Id. at 49-50. The Court reasoned that political speech is protected under the First Amendment and “cannot be limited based on a speaker’s wealth.” Id. at 34-35. Singling out corporations would be unfair, unconstitutional, and unproductive. Id. at 35-40.

Although the Court properly decided this case in accordance with the Constitution and with respect to stare decisis, the decision leads to consequences that destroy a fair marketplace of ideas during election time, the most important time to protect it.  “Under the explicit wording of the Constitution, individuals and organizations have the right to make public their political voices, and prohibiting such activities strikes at the heart of the First Amendment.” Cecil C. Kuhne, Restricting Political Campaign Speech: The Uneasy Legacy of McConnell v. FEC, 32 Cap. U. L. Rev. 839, 857 (2004). Making corporate advocacy at election time a felony under 441b constitutes censorship and thus allowing Congress to pass such a provision makes one wonder, “[h]ow far can we stretch the opening words of the First Amendment: ‘Congress shall make no law . . .’?” Samuel Issacharoff and Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 Tex. L. Rev. 1705, 1717 (1998). Faced with limitations on corporate speech, the Court properly upheld the Constitution by invalidating 441b.

The Court also properly respected stare decisis. When Pamela Harris of the Georgetown Law Center told the Washington Post, “This [decision] is obviously . . . [a] break with precedent,” she was grossly mistaken. The Court has repeatedly recognized that First Amendment protections, including in the context of political speech, extend to corporations; Austin was in fact the first time the Court had ever upheld a direct restriction on corporate political spending. Austin should be considered “the odd man out in campaign finance jurisprudence, the case that doesn’t fit the mold.” Brad Smith, Citizens United: The Government Presses Its Case to Regulate Political Speech,, July 28, 2009, Had this Court not overruled Austin it would have been forced to uphold it solely on the basis of the government’s arguments, which were unsupported by case law as applied in an expenditure context, and would have undercut past precedent from Buckley in so doing. Transcript of Oral Argument at 64, Citizens United v. Fed. Election Comm’n, No. 08-205 (U.S. Sep. 9, 2009). Therefore, in overruling Austin the Court did not break from precedent but rather did its best to adhere to stare decisis in the face of conflicting precedent.

Although the Court ruled according to the Constitution and proper legal precedent, the decision allows wealthy corporations to drown out adversarial voices at the time most important for voters to hear them. See Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827 (Can.) (“If a few groups are able to flood the electoral discourse . . . this unequal dissemination of points of view undermines the voter’s ability to be adequately informed”). Corporations, unlike individuals, are motivated solely by economic interests, making their unrestricted influence “so much more damaging” in the political arena. Transcript of Oral Argument at 53, Citizens United v. Fed. Election Comm’n, No. 08-205 (U.S. Sep. 9, 2009). More corporate media access means less democratic vitality. When people are bombarded everywhere by Coca-Cola ads they will undoubtedly buy more Coke – this is why Coca-Cola spends so much money advertising. Voters are also consumers. When advertising costs make it impossible for anyone but the wealthiest corporations to pay the price for free speech and people are bombarded with ads advocating only 1 point of view, they will consume the agenda at election time the same way they drink the Coke at lunchtime. By allowing corporations unrestricted access to voters during the most critical times before elections, the Court has essentially used the Constitution to destroy the very freedoms the Constitution intended to protect.





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