Tuesday, January 26, 2010

Stevens Gets It Right

Credit to Messrs Greg and Dan for a spirited and enlightening exchange on the Supreme Court's grievously misguided decision in Citizens United v. Federal Elections Commission, invalidating at least parts of two Supreme Court decisions (Austin v. Michigan Chamber of Commerce, 1990; McConnell v. Federal Elections Commission, 2003) and one federal law (Bipartisan Campaign Reform Act of 2002). However, some of the arguments in support of the majority position need to be rebutted, as Justice John Paul Stevens did so effectively in his opinion.

It is accurate that the position taken initially by the FEC's counsel was sufficiently ambitious that it elicited astonishment on the part of one or more justices, and on re-hearing a more modest argument was made. That course correction obviously was insufficient, and a Court (bare) majority effectuated a radical revision of the prevailing approach to campaign financing reform. If only the Court majority had recognized its own extremism in re-writing the law in a radical fashion rather than exercising judicial restraint.

As noted, Justice Kennedy, in his majority opinion wrote (p. 56 of his opinion, p. 183 of within transcript) that law as it stood "would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds." But while he refers to Section 441B, the synopsis of the ruling states

As amended by §203 of the Bipartisan Campaign Reform Act of 2002(BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. 2 U. S. C. §441b. An electioneering communication is “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate within 30 days of for Federal office” and is made within 30 days of a primary election,§434(f)(3)(A), and that is “publicly distributed,” 11 CFR §100.29(a)(2),which in “the case of a candidate for nomination for President . . . means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days,” §100.29(b)(3)(ii). Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneer-ing communications purposes. 2 U. S. C. §441b(b)(2).


In short, Kennedy seems to be referring to the BCRA, which banned within 30 days of a primary election corporations and unions from using their general treasury funds to make independent expenditures for any broadcast, cable, or satellite communication to recommend by name a candidate for election. We are left, I suppose, to determine for ourselves how that would affect blogs and it is not entirely clear. Or likely.

Neither are traditional media outlets threatened. As the Court indicated in Austin, "media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public.” (p. 84/171) Accordingly, Justice Stevens quotes McConnell as acknowledging that government is entitled to regulate media corporations differently from other corporations “to ensure that the law ‘does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events.’" (footnote on p. 32/119)

It would have been foolish for me to have argued that corporations "should be banned from (spending to advertise for or against candidates)." However, I had acknowledged- without suggesting that it be enjoined from doing so- that the Chamber of Commerce had spent over $100 million (in one year) to advance its viewpoint and that prior to the recent decision, it and every corporation had enjoyed the constitutional protection of freedom of speech. Of this, Justice Stevens, quoting from the two court cases at issue (and a third) clarified (pp. 23-28/110-115)

Our cases have repeatedly pointed out that, “[c]ontrary to the [majority’s] critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all forms of corporate political spending."

He observed "like all other natural persons, every shareholder of every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form."

Corporations hardly were hamstrung under existing law, as Stevens points out (pp. 112/113, 25/26)

the only types of speech that could be regulated under §203 were: (1) broadcast, cable, or satellite communications; (2) capable of reaching at least 50,000 persons in the relevant electorate; (3) made within 30 days of a primary or 60 days of a general federal election; (4) by a labor union or a non-MCFL, nonmedia corporation; 5) paid for with general treasury funds; and (6) “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Only if all those criteria were met would the speech be proscribed- hardly the "censorship" Justice Kennedy claimed.

Not everything a distinguished jurist writes is to be taken at face value; indeed, it is confounding to read of Kennedy's claim "at least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue."

It is possible, though barely so (and "barely" is headed out of town) that no such cases ever had been considered by the United States Supreme Court. Surely, Kennedy could not been suggesting with a straight face that no class of speakers has been, or is, excluded, "from the general public dialogue." As he surely must know and Stevens reminded him (pp. 28-34/ 115-121)

The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.

Even in the context of elections, Stevens notes, "the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled."

The special restrictions placed by government on "its own employees" may be illustrated by those imposed on judicial employees in at least New Jersey, and no doubt in others. No public expression (other than voting) of political sentiment is permitted, extending even to placement by a homeowner of a sign supporting a candidate on his/her lawn. As Stevens simply yet eloquently declares, "it is simply incorrect to suggest that we have prohibited all legislative distinctions based on identity or content. Not even close."

In those categories enumerated, it is clearly "speech" which is curtailed, but it is not so clear with the limitations struck down last week by the Court. It is a necessary precondition- necessary, not sufficient- that the restrictions the Court majority finds noxious are prohibitions on actual "speech." Justice Stevens, helpfully quoting not from a 21st century dictionary but rather from one dating from the time of the Founders, explains (footnote on p. 137/24)

In normal usage then, as now, the term “speech” referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853–1854 (4th ed. 1773) (reprinted 1978) (listing as primary definition of “speech”: “The power of articulate utterance; the power of expressing thoughts by vocal words”); 2 N.Webster, American Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of “speech”: “The faculty of uttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. Speech was given to man by his Creator for the noblest purposes”). Indeed, it has been “claimed that the notion of institutional speech . . . did not exist in post-revolutionary America.”

(Justice Scalia, who wrote a concurring opinion as a member of the majority, and Justice Kennedy unsurprisingly cling to the rather expansive, stylish concept of speech, as they did when ruling that burning a flag is "speech." They haven't learned.)

Similarly, the majority's opinion collapses if it cannot substantiate the theory that a corporation is a person. Ask any person on the street if a corporation is a person. No more than is a doctor's office, the Knights of Columbus, or the apartment building across the street. Evidently only a lawyer would dare attempt to construe an organization, a business, or a corporation as a "person." As Stevens explains (p.2/89)

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.

Although their interests may conflict with those of eligible voters, corporations, under this ruling, will be able to do at least one thing that the political parties representing those voters will not be able to do (pp. 107-108/20-21):

corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able to spend a dime of soft money on ads of any kind. The Court’s ruling thus dramatically enhances the role of corporations and unions— and the narrow interests they represent—vis-à-vis the role of political parties— and the broad coalitions they represent— in determining who will hold public office.

And whose interests will these corporations represent when they spend voluminously on political ads? The shareholders, customers, or Board of Directors? It's not entirely clear. Clear, however, is that (pp. 55-56/142-143),

over the course of the past century Congress has demonstrated a recurrent need to regulate corporate participation in candidate elections to “‘[p]reserv[e] the integrity of the electoral process, preven[t] corruption, . . . sustai[n] the active, alert responsibility of the individual citizen,’” protect the expressive interests of shareholders, and “‘[p]reserv[e] . . . the individual citizen’s confidence in government."

(Ancient wisdom supports modern understanding: 33 references in the Bible to “speech” and none pertaining to anything other than the spoken word coming from one’s mouth; and 102 references to “person” and nary a one pertaining to anything other than a human being.)

It is accurate that the position taken initially by the FEC's counsel was sufficiently ambitious that it elicited astonishment on the part of one or more justices, and on re-hearing a more modest argument was made. Notwithstanding the course correction, a Court (bare) majority effectuated a radical revision of the prevailing approach to campaign financing reform. But it failed, apparently, to recognize its own extremism in re-writing the law in a radical fashion rather than exercising judicial restraint. As demonstrated by the attention Messrs. Greg and Dan have afforded the subject, the Court's decision (unless modified by the peoples' representatives) poses a nearly unprecedented threat to the American experiment.

2 comments:

Dan said...

Thank you for your spirited posts and your noteworthy use of the dissenting and majority arguments. I certainly understand your belief that the Court acted too broadly. I'm glad you seem to accept that a primary reason the government lost the case is because it made claims that it could ban books and other media initially, and then during the re-argument it changed it's argument completely to saying it could not. When you are before the Court and your argument changes from one hearing to the next, especially when it involves constitutional powers, there is clearly a problem. The government did not clearly understand it's authority, and that is troubling.

We seem to be going around in circles, and you seem to be making three different arguments. You seem to first be arguing that corporations' speech really isn't inhibited by this because they have many outlets and ways to speak, but then you seem to argue that their speech should be inhibited in limited formats and circumstances, and then you seem to say they have no legitimate constitutional right to free speech at all.

You must argue for 1 of these 3 points, rather than take a bit of all of them. If a corporation, which is composed of employees, managers, and shareholders, is not to be considered a "person," then neither should any organization or group composed of members, employees, or those who donate to a cause because organizations are also not strict "persons". They are then not entitled to free speech at all and the government has the authority to prohibit their speech in any way or in any circumstance, which I find a disturbing proposition that the First amendment is meant to prevent. There is no real difference between corporations and an other entities that consist of multiple individuals. Corporations may have differing agendas from organizations, but they cannot be separated out because Congress deems their agenda to be more unsavory.

You rightly note that, "the only types of speech that could be regulated under §203 were: (1) broadcast, cable, or satellite communications; (2) capable of reaching at least 50,000 persons in the relevant electorate; (3) made within 30 days of a primary or 60 days of a general federal election; (4) by a labor union or a non-MCFL, nonmedia corporation; 5) paid for with general treasury funds; and (6) “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

I again ask how you can infringe speech only under these particular circumstances. What prevents Congress from making it 2 years before an election, rather than 60 days? Why not restrict anything that reaches 2,000 people, rather than 50,000? Congress had a rationale for making it the way it is, but these restrictions are ultimately arbitrarily chosen by them. If corporations have a right to free speech, Congress has no right to infringe it in this manner. If they do not have this right, Congress can expand this in any manner. This was what the majority was hitting upon when the argument turned to banning books,etc.

Dan said...

see previous comment


You also seem to indicate that advertising is not really speaking. If so, then government can restrict advertising on whoever it wants and in any form. I think this is a dangerous and off-base claim. If I pay to advertise something, I am doing it to communicate or "speak" a message.

You rightly point out that speech can be inhibited for prisoners and government employees. I don't pretend to know the legal justifications for this, which are likely to be complex, but I favor a broad right to free speech.

Thanks again for all your hard work. I'd like to know which of the 3 positions you advocate:
1. this rule does not inhibit their speech, which they are entitled to and can pursue other ways (this position does not hold up)
2. their speech should be inhibited in this limited set of circumstances because of the danger to our democracy (again i ask how you can infrindge on this right)
3. they have no right to free speech because they are not "persons" (I expect you are in favor of this position, but I wonder how this does not then allow Congress to restrict the speech of any group in any form or circumstance)

Thanks

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