At Politico Arena, today’s focus is on the Court and campaign finance.
At Politico Arena, today’s focus is on the Court and campaign finance.
The Citizens United decision is barely out, and incumbent members of Congress are vowing to restore restrictions on political speech.
Sen. Russell Feingold (D-WI) said: “In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible.”
In the House of Representatives, Robert Brady, Chairman of the House Administration Committee - the panel responsible for campaign finance regulations - sent out an email that said: “I will be working directly with my colleagues, the Leadership and the White House to study the Court’s decision and to put together a timeline for legislative action that ensures the Court’s decision will not define the ways elections are conducted in 2010.”
It is difficult to see how Feingold, Brady and other members of Congress will be able to get around the clear and certain language of the Citizens United decision. But they will try. Nothing worries members more than free and critical speech, especially when the upcoming election already looks really bad for incumbents.
In 2005, political opponents filed a complaint against the Independence Institute for not complying with the Colorado constitution and other campaign finance regulations when it spoke against a state ballot initiative. These regulations require, among other things, disclosure of the identity of anyone who has donated more than $20 to a cause and imposes registration and contribution limits on groups who have major interests in ballot issues.
The Independence Institute challenged the constitutionality of Colorado’s state ballot issue requirements and the issue is petitioning the Supreme Court for certiorari in Independence Institute v. Buescher. Cato has filed an amicus brief, in cooperation with Wyoming Liberty Group, the Center for Competitive Politics, the Sam Adams Alliance, the Montana Policy Institute, and the Goldwater Institute in support of the Independence Institute. We argue that Colorado’s ballot campaign regulations run roughshod over constitutional protections for political speech and association, which lie at the very heart of the First Amendment—particularly for think tanks and other organizations that regularly comment on public policy matters. Loss of these First Amendment protections will chill think tanks’ future attempts to educate the public about issues that are the subject of ballot campaigns. The Court should thus review this case and ensure that citizens maintain their associational rights—including the right to remain anonymous when donating to non-profits—and associations their freedom of expression.
You can download the entire brief here. A special thanks to Cato Legal Associate Travis Cushman for his assistance on this brief.
Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term. The Court already heard one argument – in the Citizens United campaign finance case – but it had been carried over from last year, so it doesn’t really count.
In any event, continuing its trend from last term, the Court has further front-loaded its caseload – with nearly 60 arguments on its docket already. Fortunately, unlike last year, we’ll see many blockbuster cases, including:
Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.
Perhaps more importantly, we also have a new justice – and, as Justice White often said, a new justice makes a new Court. While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity. Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent – and the first term is not necessarily indicative.
Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right. We’ve already seen her make waves at the Citizens United reargument – questioning the scope of corporations’ constitutional rights – so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.
In short, it’s the first day of school and I’m excited.
The Citizens United case currently before the Supreme Court may radically reshape campaign finance law for years to come. Former FEC commissioner Bradley A. Smith spoke at a forum on the case a day before the rehearing before the high court.
According to Smith, who is also the founder of the Center for Competitive Politics, under current law, the government does have the power to ban certain books if those books are published by a corporation, as ruled by the Supreme Court in 1990.
I (and several colleagues) have blogged before about Citizens United v. Federal Election Commission, the latest campaign finance case, which was argued this morning at the Supreme Court. The case is about much more than whether a corporation can release a movie about a political candidate during an election campaign. Indeed, it goes to the very heart of the First Amendment, which was specifically created to protect political speech—the kind most in danger of being censored by politicians looking to limit the appeal of threatening candidates and ideas.
After all, hard-hitting political speech is something the First Amendment’s authors experienced firsthand. They knew very well what they were doing in choosing free and vigorous debate over government-filtered pablum. Moreover, persons of modest means often pool their resources to speak through ideological associations like Citizens United. That speech too should not be silenced because of nebulous concerns about “level playing fields” and speculation over the “appearance of corruption.” The First Amendment simply does not permit the government to handicap speakers based on their wealth, or ration speech in a quixotic attempt to equalize public debate: Thankfully, we do not live in the world of Kurt Vonnegut’s Harrison Bergeron!
A few surprises came out of today’s hearing, but not regarding the ultimate outcome of this case. It is now starkly clear that the Court will rule 5-4 to strike down the FEC’s attempt to regulate the Hillary Clinton movie (and advertisements for it). Indeed, Solicitor General Elena Kagan – in her inaugural argument in any court – all but conceded that independent movies are not electioneering communications subject to campaign finance laws. And she reversed the government’s earlier position that even books could be banned if they expressly supported or opposed a candidate! (She went on to also reverse the government’s position on two other key points: whether nonprofit corporations (and perhaps small enterprises) could be treated differently than large for-profit business, and what the government’s compelling interest was in prohibiting corporations from using general treasury funds on independent political speech.)
Ted Olson, arguing for Citizens United, quickly recognized that he had his five votes, and so pushed for a broader opinion. That is, the larger – and more interesting – question is whether the Court will throw out altogether its 16-year-old proscription on corporations and unions spending their general treasury funds on political speech. Given the vehement opposition to campaign finance laws often expressed by Justices Scalia, Kennedy, and Thomas, all eyes were on Chief Justice Roberts and Justice Alito, in whose jurisprudence some have seen signs of judicial “minimalism.” The Chief Justice’s hostility to the government’s argument – “we don’t put our First Amendment rights in the hands of FEC bureaucrats” – and Justice Alito’s skepticism about the weight of the two precedents at issue leads me to believe that there’s a strong likelihood we’ll have a decision that sweeps aside yet another cornerstone of the speech-restricting campaign finance regime.
One other thing to note: Justice Sotomayor, participating in her first argument since joining the Court, indicated three things: 1) she has doubts that corporations have the same First Amendment rights as individuals; 2) she believes strongly in stare decisis, even when a constitutional decision might be wrong; and 3) she cares a lot about deferring to the “democratic process.” While it is still much too early to be making generalizations about how she’ll behave now that she doesn’t answer to a higher Court, these three points suggest that she won’t be a big friend of liberty in the face of government “reform.”
Another (less serious) thing to note: My seat – in the last row of the Supreme Court bar members area – was almost directly in front of Senators John McCain and Russ Feingold (who were seated in the first row of the public gallery). I didn’t notice this until everyone rose to leave, or I would’ve tried to gauge their reaction to certain parts of the argument.
The U.S. Supreme Court hears arguments this week in Citizens United v. Federal Election Commission. The case features the Federal Election Commission ruling that for the group Citizens United to run its documentary on Hillary Clinton would violate McCain-Feingold. The decision was a constitutional travesty, since this is precisely the sort of political speech that constitutes the core of the First Amendment.
Theodore B. Olson has given us a taste in the Wall Street Journal of the argument that he will be making before the Court tomorrow:
The idea that corporate and union speech is somehow inherently corrupting is nonsense. Most corporations are small businesses, and they have every right to speak out when a candidate threatens the welfare of their employees or shareholders.
Time after time the Supreme Court has recognized that corporations enjoy full First Amendment protections. One of the most revered First Amendment precedents is New York Times v. Sullivan (1964), which afforded publishers important constitutional safeguards in libel cases. Any decision that determines that corporations have less protection than individuals under the First Amendment would threaten the very institutions we depend upon to keep us informed. This may be why Citizens United is supported by such diverse allies as the ACLU, the U.S. Chamber of Commerce, the AFL-CIO, the National Rifle Association and the Reporters Committee for Freedom of the Press.
Persons of modest means often band together to speak through ideological corporations. That speech may not be silenced because of speculation that a few large entities might speak too loudly, or because some corporations may earn large profits. The First Amendment does not permit the government to handicap speakers based on their wealth, or ration speech in order somehow to equalize participation in public debate.
Tomorrow’s case is not about Citizens United. It is about the rights of all persons—individuals, associations, corporations and unions—to speak freely. And it is about our right to hear those voices and to judge for ourselves who has the soundest message.
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