Today the United States Supreme Court released its decision in the case of Citizens United vs. the Federal Election Commission. This long overdue decision is a victory not only for Citizens United but also for the First Amendment. The majority opinion clearly and decisively explained that “[n]o sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”
The case decided this morning revolves around the 2007 film Hillary the Movie. The film, which took an in-depth and critical look at the career of Hillary Clinton, was set to appear on cable television via video on demand during the Democratic presidential primary season in 2008. The broadcast was prohibited by the so-called Bipartisan Campaign Reform Act of 2002, because Citizens United was organized as a corporation and had accepted a small amount of contributions from corporations to finance the film.
The government walks down a very treacherous path when it attempts to regulate speech, whether on film, print, or television. Previous case law including Austin v. Michigan Chamber of Commerce and McConnell vs. FEC had created a regulatory scheme so complex one dare not speak without consulting a lawyer. Even then, one should only consult an election lawyer with years of experience because the rules are so complex and precise. As a lawyer you’d think I’d welcome the business, but not at the expense of the First Amendment.
The established case law centered on two precedents: Austin, which upheld a law prohibiting corporations from using their funds to make independent expenditures in support or opposition of candidates and McConnell which banned corporations from using their treasury funds to make electioneering communications in the weeks leading up to an election. These cases created a confusing series of rules governing political speech which all but the most seasoned election lawyers could navigate. After Citizens United the law is much clearer.
The decision in Citizens United overturns the holding in Austin and that part of McConnell pertaining to electioneering communications. In doing so Justice Kennedy warns of the danger of Congress enacting legislation to prevent speech that is critical of its members. He explains that had the current regulatory scheme been in place when Mr. Smith Goes to Washington was in production regulators could have banned its distribution.
“After all, 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.”
Today’s decision removes a regulatory hurdle which has proven unnecessary and impracticable. Determining where a line has been crossed taking a communication into the realm of electioneering has created a system so difficult to approach that many have chosen not to join the national debate for fear of being penalized. Today they have been given back their voice.
Previous holdings had rested on faulty assumptions which even the government did not continue to defend in its briefs. Austin and its progeny justified banning corporate electioneering communications on the rationale that “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”
The FEC didn’t defend the reasoning behind Austin, rather the FEC had asked the Court to embrace two new theories focusing on the “need to prevent actual or apparent quid pro quo corruption, and the need to protect corporate shareholders.” The majority wisely eschewed these approaches and avoided heading down a very treacherous path.
The Supreme Court acknowledged the important protection afforded to political speech by the First Amendment. In turning away from the dangerous path or regulating political speech the Court turns to the founding days of our republic noting that “[a]t the founding, speech was open, comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowledge.”