Tag: First Amendment

‘We Don’t Put Our First Amendment Rights In the Hands of FEC Bureaucrats’

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.

Finally, you can find the briefs Cato has filed in the case here and here.

Citizens United and Supreme Court Precedent

My old friend E. J. Dionne of the Washington Post writes that the Citizens United v. FEC rehearing on Wednesday is “A Test Case for Roberts.” Because, you see, Chief Justice John Roberts said in his confirmation hearings that “it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough – and the court has emphasized this on several occasions – it is not enough that you may think the prior decision was wrongly decided.”

Dionne says that if Roberts and the Court overturn the precedents that seem to point to banning a movie with a political agenda because it was produced by a nonprofit corporation, “he will unleash havoc in our political system and greatly undermine the legitimacy of the court he leads.”

I disagree with Dionne on the scope of the First Amendment’s protection of free speech. But I sort of admire him for staking out such a strong stand in favor of precedent and “settled expectations.” After all, a firm commitment to precedent can lead to some uncomfortable positions. Given the firmness of Dionne’s reliance on the importance of precedent and “settled expectations” to “the legitimacy of the court,” I assume he has opposed previous cases where the Court overturned settled law and its own precedent. Such as Brown v. Board of Education, which overturned a 58-year-old case, Plessy v. Ferguson. And Lawrence v. Texas, which overturned a 17-year-old precedent that had upheld state sodomy laws.

Or surely he does not mean that only precedents he approves of are deserving of respect and vital to the legitimacy of the court?

Reviving the First Amendment

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.

A Chance to Rethink How We Regulate Political Speech

At the March 24 argument in Citizens United v. Federal Election Commission, the U.S. government argued that Section 203 of the Bipartisan Campaign Reform Act of 2002 (otherwise known as McCain-Feingold) permits the FEC to ban corporations, including ideological nonprofits like Citizens United, from making independent expenditures on films, books, or even “a sign held up in Lafayette Park.”  The jurisprudential justification for this extraordinary and shockingly expansive view of the government’s power to suppress political speech traces to the Supreme Court’s 1990 decision in Austin v. Michigan Chamber of Commerce.  In Austin, the Court held that Michigan had a compelling state interest in banning political speech funded with wealth accumulated using the corporate form.  Though the Court contended that such speech, because it bears little correlation to public support for the political ideas expressed, constituted a “different type of corruption,” in reality it upheld Michigan’s statute as a “counterbalance” to the “distorting” and “unfair” influence corporate funds could have on the outcome of elections.

This relative-equality rationale—suppressing disfavored speakers to enhance the voice of other government-favored speakers—is antithetical to core First Amendment protections and elsewhere has been expressly rejected by the Court (in Buckley v. Valeo and, more recently, in Davis v. FEC).  Accordingly, to decide Citizens United’s appeal, the Court ordered rebriefing and reargument on Austin’s continuing validity.

On Friday, Cato filed its brief, the second we’ve filed in the case. We argue that Austin, and the part of McConnell v. FEC that upheld Section 203’s facial validity, are not entitled to stare decisis deference and should thus be overturned.  These relatively recent decisions are poorly reasoned, have engendered no reliance interests (no one relies on less freedom of speech), and have spawned an unworkable and irrational campaign finance system in which the government rations different levels of permissible political speech to otherwise equally situated speakers.

The case will be reargued September 9, in a special session about a month before the official start of the Court’s new term.

Here’s a Cato Institute video detailing some elements of the original Citizens United oral argument:

Our Tax Dollars Are Being Used to Lobby for More Government Handouts

The First Amendment guarantees our freedom to petition the government, which is one of the reasons why the statists who wants to restrict or even ban lobbying hopefully will not succeed. But that does not mean all lobbying is created equal. If a bunch of small business owners get together to lobby against higher taxes, that is a noble endeavor. If the same group of people get together and lobby for special handouts, by contrast, they are being despicable. And if they get a bailout from the government and use that money to mooch for more handouts, they deserve a reserved seat in a very hot place.

This is not just a hypothetical exercise. The Hill reports on the combined $20 million lobbying budget of some of the companies that stuck their snouts in the public trough:

Auto companies and eight of the country’s biggest banks that received tens of billions of dollars in federal bailout money spent more than $20 million on lobbying Washington lawmakers in the first half of this year. General Motors, Chrysler and GMAC, the finance arm of GM, cut back significantly on lobbying expenses in the period, spending about one-third less in total than they had in the first half of 2008. But the eight banks, the earliest recipients of billions of dollars from the federal government, continued to rely heavily on their Washington lobbying arms, spending more than $12.4 million in the first half of 2009. That is slightly more than they spent during the same period a year ago, according to a review of congressional records.

…big banks traditionally are among the most active Washington lobbying interests in the financial industry, and the recession has done little to dent their spending. …Since last fall, companies receiving government funds have argued that none of the taxpayer money they were receiving was being spent on lobbying.

…American International Group, the insurance firm crippled by trades in financial derivatives that received roughly $180 billion in bailout commitments, closed its Washington lobbying shop earlier this year. AIG continues to spend money on counsel to answer requests for information from the federal government, but the firm said it does not lobby on federal legislation.

The most absurd part of the story was the companies claiming that they did not use tax dollar for lobbying. I guess the corporate bureaucrats skipped the classes where their teachers explained that money is fungible.

The best part of the story was learning that AIG closed its lobbying operation, though that does not mean much since AIG basically now exists as a subsidiary of the federal government. The most important message (which is absent from the story, of course) is that the real problem is that government is too big and that it intervenes in private markets. Companies would not need to lobby if government left them alone and/or did not offer them special favors. Indeed, that was the key point of my video entitled, “Want Less Corruption: Shrink the Size of Government.”

The Roberts Revolution to Come

As I mentioned yesterday, the U.S. Supreme Court surprised many people by ordering a reargument in the case of Citizens United v. Federal Election Commission. Specifically, the Court called for the parties to the case to address the question of overruling Austin v. Michigan Chamber of Commerce.

The Court decided Austin v. Michigan Chamber of Commerce in 1989.  The state of Michigan had prohibited corporations from spending money on electoral speech. In the case in question, the Chamber of Commerce wished to pay for an advertisement backing a candidate for the House of Representatives. The Chamber took this action on its own and not in tandem with the candidate or his party.  Paying for the ad was a felony under Michigan law.

A majority of the Court in 1989 said the Michigan law did not violate the First Amendment. However, the majority had a problem. Previous cases permitted limits on funding electoral speech only in pursuit of a compelling state interest: the prevention of quid pro quo corruption or its appearance. The Court had also ruled that independent spending by groups could not corrupt candidates.

So the majority needed a novel rationale for approving Michigan’s suppression of speech. The majority concluded that speech funded by corporations would distort the democratic process and that the state could prohibits such outlays to prevent harms done by “immense wealth.” In other words, the Austin majority tried to redefine “corruption” as “inequality of influence.” That revision had its own set of problems. Buckely v. Valeo, the Ur-decision in campaign finance, had excluded equality as a compelling state interest justifying regulation of campaign finance.

It is easy to see why the Buckley Court had rejected equality of influence as a reason for restricting political speech. Imagine Congress could prohibit speech that had “too much influence.” But how could that be determined? A majority in Congress would be tempted to suppress speech that threatened the power of that majority.  Paradoxically, the equality rationale would strengthen those who already held power while vitiating representative government. The First Amendment tries to prevent that outcome.

In last year’s decision in Davis v. FEC, the Court again rejected the equality rationale for campaign finance laws.  More and more the Austin decision is looking like bad law.

Justices Kennedy and Scalia, both current members of the Court, wrote dissents in Austin. Justice Thomas has called for Austin to be overruled in other contexts.  Neither Justices Roberts nor Alito is likely to vote to uphold Austin (or the relevant parts of McConnell v. FEC for that matter). But it would seem that either or both of them were unwilling to strike down a precedent without a formal hearing. That hearing will come on September 9 with a decision expected by Thanksgiving.

Almost six years after the Court utterly refused to defend free speech in McConnell v. FEC, the Roberts Court may be ready to vindicate the First Amendment against its accusers in Congress and elsewhere.

Judge Sonia Sotomayor’s Philosophy of Judging

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals has been mentioned as a possible Supreme Court nominee.  She also has been caught on tape explaining her view of a judge’s role.  Reports the Washington Post:

As White House press secretary Robert Gibbs put it, Obama is looking for “somebody who understands how being a judge affects Americans’ everyday lives.”

Congressional conservatives have reacted anxiously to that qualification, fearing that it means a nominee who is more interested in making the law than in interpreting it.

One possible candidate for the seat, Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit, appeared to walk close to that line in a video that emerged yesterday. Sotomayor would be the first Latino and the third woman to serve on the high court.

Speaking at Duke University in 2005, Sotomayor said, “All of the legal defense funds out there, they’re looking for people with court of appeals experience” because “the court of appeals is where policy is made.”

She then sought to soften the statement, adding lightly, “I know this is on tape and I should never say that, because we don’t make law, I know. Um, okay. I know. I’m not promoting it, I’m not advocating it.” The audience laughed as she brushed off the statement, perhaps sarcastically.

Making policy.  Yes, it is indisputable that that’s what judges often do.  But is that what they are supposed to do? 

President Barack Obama seems to think so, when he talks about the importance of “empathy” in judges.  (With whom do I empathize in this First Amendment case:  the U.S. Attorney General or the New York Times?  I vote for the Times!)  However, the Senate might want to debate this issue before approving someone to fill Justice David Souter’s vacancy, especially if the nominee shares the president’s apparent view that empathy is a substitute for jurisprudence in interpreting the law and Constitution.