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 — 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 5-4 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, some officials sought, by persuasion, to discourage its distribution.” Kennedy wrote. Under existing rationale, “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 conservative activist 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 his plans for distribution violated campaign finance reform laws. The rules prohibit corporations from making “electioneering communications” on broadcast, cable and satellite that expressly advocate for or against 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 presidential campaign.
But in 2005, federal election officials, acting on a challenge from Bossie himself, said that Moore’s movie was different in that it was not expressly advocating for the defeat of Bush in the election, and ruled that it fell within the exemption for “commercial transactions.” In other words, “Fahrenheit” was made for the purpose of selling tickets to see it, not to influence a campaign.
While journalists and media outlets also are exempt from restrictions, Bossie’s challenge got the support from a number of reporters organizations and First Amendment advocates.
The orgs argued that the shifting nature of technology was 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 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.”
The lifting of corporate restrictions could very well trigger a wave of new ad spending, a boon to broadcasters and cablers, as well as local stations. The Campaign Legal Center noted as such in its critique of the ruling, saying, “As a result of this decision, for profit corporations and industries will be able to threaten members of Congress with negative ads if they vote against corporate interests, and to spend tens of millions on campaign ads to ‘punish’ those who do not knuckle under to their lobbying threats.” 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 and other projects will still identify where the money is coming from.
It still doesn’t negate the worry among campaign finance reformers that corporations and labor unions now will have undue influence over the process, only adding to their lobbying foothold in Washington. In his dissent, Justice John Paul Stevens’ said that it is an error to treat corporate speech as the same as that of humans.
Kennedy, however, was adamant in declaring no distinction between personal speech and corporate speech.
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 wrestled with the case for almost a year. Some share the First Amendment sentiments of the conservative justices. Others fear a greater number of documentary style advocacy projects hitting the airwaves in the heat of elections, with it left up to the viewer to make the distinction between a genuine journalistic enterprise and that of a corporation seeking to influence the process. For his part, Moore has expressed support for the now-scuttled campaign finance laws, and he argued that the distinctions between “Fahrenheit 9/11” and “Hillary, the Movie” were clear.
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.”