The Supreme Court’s decision to strike down restrictions on corporate spending in political campaigns may create a whole new wave of issue ads and even documentaries — along with a financial boon to broadcasters — but a majority of justices saw it as the price to pay in protecting the First Amendment.
In fact, Justice Anthony Kennedy, in writing the majority opinion in Citizens United vs. FEC, made the case that existing laws were so broad that it threatens to chill even the speech of filmmakers and journalists.
“When word concerning the plot of the movie ‘Mr. Smith Goes to Washington’ reached the circles of government,” he wrote, “some officials sought, by persuasion, to discourage its distribution.” Under existing rationale, he added, “officials could have done more than discourage distribution. They could have banned the film.”
The case stems from a documentary called “Hillary, the Movie,” a documentary made by political operative David Bossie that was highly critical of Hillary Clinton, to the point that the Supreme Court said that there was little doubt that it was an attack against her. When Bossie in 2007 attempted to show the movie on video-on-demand, coupled with advertising spots promoting its availability, the Federal Election Commission found that it violated campaign finance reform laws. The restrictions did not prohibit the movie from being shown in theaters or distributed on DVD.
Among other things, the laws prohibit corporations from making “electioneering communications” on broadcast, cable and satellite that expressly advocate for a candidate in the weeks before a primary and an election. Because Bossie’s group, Citizens United, a conservative non profit, received some corporate money to make “Hillary, the Movie,” federal election officials said it fell within the restrictions.
Bossie’s legal team, led by Ted Olson, saw little difference between “Hillary, the Movie,” and Michael Moore’s “Fahrenheit 9/11,” the documentary critical of George W. Bush that ran in the months before the 2004 campaign.
But federal elections officials, acting on a challenge, ironically, from Bossie himself, said in 2005 that Moore’s movie was different in that it was not expressly advocating for the defeat of Bush in the election, and that it fell within the exemption for “commercial transactions.” In other words, it was made for the purpose of selling tickets to see it, not to influence a campaign.
While journalists also are exempt from restrictions, Bossie’s challenge got the support from a number of reporters organizations and free press advocates, including the Reporters Committee for the Freedom of the Press. Even the ACLU backed Citizens United, a frequent foe. The orgs argued that the shifting nature of technology is making it ever more difficult to define who is a journalist and who isn’t, giving the government the power to decide who falls under the exemption and who does not.
In the 5-4 opinion, Kennedy agreed.
“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” he wrote. “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”
A saving grace for campaign finance advocates may be in the fact that the court refused to strike down disclosure requirements — meaning that those tags at the end of 30-second spots will still identify where the money is coming from. In fact, Kennedy seemed to press for a quicker process of identifying financing sources, via the Internet.
“Disclosure is the less restrictive alternative to more comprehensive speech regulations,” he wrote.
Finance reformers still worry that corporations and labor unions now will have undue influence over the process, if they didn’t already via lobbying. And the crux of the dissent, from Justice John Paul Stevens, was that it’s an error to treat corporate speech as the same as that of individuals.
Kennedy, however, didn’t make the distinction.
Referring to Frank Capra’s 1939 classic, he said, “it, like Hillary, was speech funded by a corporation that was critical of members of Congress. ‘Mr. Smith Goes to Washington’ may be fiction and caricature; but fiction and caricature can be a powerful force.”
Corporations still will be prohibited from giving directly to political candidates other than through a political action committee.
Filmmakers have had mixed views as the court considered the case. Some shared the First Amendment concerns of the conservative justices. But the ruling also raises the prospect of a greater number of documentary style advocacy projects hitting the airwaves in the heat of elections, with it up to the viewer to make the distinction between a genuine journalistic enterprise and that of a corporation seeking to influence the process. Even though disclosure laws were upheld, campaign finance reformers said there is nothing to prevent a company from simply shielding its involvement by channeling its money to orgs like the U.S. Chamber of Commerce.
Moore’s headline on his Website on Thursday read: “Democracy Inc.: Supreme Court throws out crucial campaign finance law, opens floodgates to unlimited corporate cash.”
Update: Olson, who is in San Francisco seeking to overturn Prop 8, issued this statement on the court’s decision.
“The Supreme Court’s decision today is a victory for the First Amendment and the right of all Americans to participate in the political process. Speech about our government and candidates for elective office lies at the heart of the First Amendment, and the Court’s decision vindicates the right of individuals to engage in core political speech by banding together to make their voices heard.
“McCain-Feingold impermissibly restricted the right of individuals joined together in the corporate form or in a union to engage in political speech when it mattered most–in the period immediately preceding an election. The Court recognized that permitting widespread participation in the marketplace of ideas will invigorate political discourse, promote public debate on important issues, and, ultimately, strengthen the very foundations of our democracy.
“The decisions that the Court today overruled rested on the faulty premise that political speech can be restricted in order to prevent corporate money from “distorting” political discourse. In fact, the vast majority of corporations are either nonprofit advocacy groups–like Citizens United–or small businesses. Far from “distorting” the political process, the speech of these corporations reflects the views of their members or the entrepreneurial individuals who formed the corporation. Permitting these individuals to have a voice in the political process adds an important perspective to the public debate and enables individuals of limited means to band together to counterbalance the political speech of the super-rich. McCain-Feingold silenced those speakers, and, as the Court concluded, was therefore impossible to reconcile with the First Amendment.”