by Barb and Kellye
This is the final post in a 4 part series covering the 7 major questions considered in the Supreme Court’s Citizens United case (Part 1, Part 2, Part 3). This post covers the last 2 questions. One question involves whether the courts should give proper deference to legislatures in deciding if and how to regulate political spending. The other question concerns whether the playing field between media corporations and all other corporations should be leveled when it comes to unlimited free speech.
Should legislatures be given proper deference by the courts in deciding if and how to regulate corporate political spending?
‘”No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations” when it comes to funds spent independently of a political party or candidate’s campaign. Therefore, laws passed by federal or state legislatures to limit this type of spending are not only unnecessary, but unconstitutional.
Congress and state legislatures have “relied on their authority to regulate corporate electioneering …… for more than a century.” Congress passed BCRA “in response to a virtual mountain of research on the corruption that previous legislation had failed to avert.” The fact that the Court has undermined Congress after having affirmed 6 years earlier that BCRA’s corporate electioneering provision was constitutional “shows great disrespect for a coequal branch.”
To give proper deference to legislatures, the Court could have ruled on a narrow issue. In Washington State Grange v. Washington State Republican Party (2008), the Court had emphasized judicial restraint by stating that courts should not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” However, without regard for judicial restraint, the Court in this decision “operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.”
This ruling will “cripple the ability of ….. Congress and the States to adopt even limited measures to protect against corporate domination of the electoral process.” Justice Stevens quotes Burroughs v. United States (1934), “To say that Congress is without power to pass appropriate legislation to safeguard … an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.” Therefore, both federal and state legislatures should be allowed to pass laws that regulate corporate political spending.
Does the Citizens United ruling simply level the playing field for all corporations since media corporations were already granted “freedom of the press” and unlimited “free speech”?
Many media organizations take the corporate form. Media corporations “use money amassed from the economic marketplace to fund their speech, …. even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.” Since this line of reasoning was used in Austin v. Michigan Chamber of Commerce (1990) to allow the government to ban political spending from corporate treasuries, continuing with this line of reasoning “would produce the dangerous and unacceptable consequence that Congress could ban political speech of media corporations.” This would be in direct conflict with the 1st Amendment’s “freedom of the press.”
“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations [from Section 441b’s ban on corporate expenditures] and those which are not. With the advent of the Internet and the decline of print and broadcast media, moreover, the line between media and others who wish to comment on political and social issues becomes far more blurred.”
Many media corporations have become conglomerates with portions of their business unrelated to media. Is it fair that this type of media corporation can speak without restriction “to advance its overall business interest,” while another corporation “with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue?”
The majority would have you believe that corporations have been banned from all speech. Corporations are free to speak on issues, and they can form PACs to support political candidates and parties. They can use corporate funds to spend independently of a candidate or party, as long as there is no coordination and the funds are not spent on express advocacy or electioneering communications.
The plaintiff in this court case, Citizens United, is a non-profit special interest group and is not a for-profit media corporation. The media issue troubling the majority is of the majority’s own making. Justice Stevens uses this quote to describe them: “We have first raised a dust and then complain we cannot see.” The media issue would not even be a concern if the majority had not done two things.
First, the majority instructed the parties to re-argue the case on much broader grounds rather than ruling on the narrow question that was originally brought before the Court; specifically, did BCRA’s rules on electioneering communications apply to Citizens United’s showing of the political documentary, Hillary: The Movie? Second, the majority “invent[ed] the theory that legislatures must eschew all ‘identity’ – based distinctions and treat a local nonprofit news outlet exactly the same as General Motors.”
The majority makes no distinction between media corporations and any other corporation concerning “freedom of the press”. They consider “freedom of the press” to be an activity which would apply to any individual or entity wanting to publish views. Justice Stevens believes that the framers of the Constitution intended “freedom of the press” to apply to the “Press,” a specific entity.
The reasoning of the majority creates a dilemma. “If the legislature gives media corporations an exemption from electioneering regulations that apply to other corporations, it violates the newly minted First Amendment rule against identity-based distinctions. If the legislature does not give media corporations an exemption, it violates the First Amendment rights of the press. The only way out of this invented bind: no regulations whatsoever.”