Topic: Law and Civil Liberties

Citizens United and Corporate Money in Politics

As several of my colleagues noted yesterday, the Supreme Court handed down its landmark decision in Citizens United v. FEC. While I regarded the decision as a victory for free speech, a large number of folks on the left — many of whom support free speech in other contexts — were aghast at the decision, arguing that it would vastly enhance the influence of large corporations in the political process.

Part of my disagreement with these guys is that I’m just a free speech zealot. The First Amendment says “Congress shall make no law … abridging the freedom of speech,” and I don’t see how that language can be squared with a statute that limits the distribution of a political documentary. The best you can say, I think, is that limiting corporate influence is a “compelling state interest” sufficient to overcome the First Amendment’s ban on speech abridgment, but that’s just another way of saying that you don’t care about free speech very much.

Second, I think it’s important to remember that “corporations” encompass much more than large, for-profit businesses. They also include a wide variety of non-profit and advocacy groups, including the ACLU, the NRA, and NARAL, that are, by any reasonable definition, grassroots organizations advocating the views of large numbers of voters. Indeed, as the ACLU pointed out in its amicus brief, the Bipartisan Campaign Reform Act (BCRA) prohibited the ACLU from running ads criticizing members of Congress who voted for the awful FISA Amendments Act of 2008. Even if you think it’s appropriate for Congress to regulate the speech of Exxon-Mobil and Pfizer, I think it’s awfully hard to square the First Amendment with a law that limits the ability of NARAL or the NRA to advocate for its members’ views.

But more fundamentally, I don’t buy the idea that limiting corruption is a state interest sufficiently compelling to overcome the First Amendment interest in free speech. I think supporters of BCRA misunderstand how corporations wield influence and dramatically overestimate the power of television advertisements. It’s true, of course, that a corporation prepared to spend $1 million on ads criticizing a particular legislator will get that legislator’s attention. But there’s nothing unique about this. It can also get his attention by hiring a lobbying firm that employs a former staffer. It can get his attention by arranging $100,000 in bundled contributions from executives, clients, and friends of the company. It can get his attention by creating astroturf organizations. And there are probably lots of other mechanisms I haven’t thought of.

The key difference between independent expenditures and the other mechanisms is that independent expenditures are the most open and transparent. To run an effective “issue ad,” a corporation has to make an argument that is persuasive to voters. I don’t want to sugar coat the situation; sometimes independent expenditures finance ads that are sleazy and misleading. But given a choice between corporations spending their money on ads about how Senator Smith hates America or spending their money on K Street, I’ll take the ads, because at least voters still get the final decision.

Moreover, I think we’re moving toward a world in which traditional high-dollar advertising campaigns will become increasingly ineffective. One smart liberal compares the post-Citizens United world to a debate in which “you get 10 seconds to make your case. I’ll take an hour.” This description of the world had a certain plausibility when most people got their news from newspapers and television — media characterized by severe, technologically imposed bottlenecks. These bottlenecks meant that those willing to spend more money could get a significantly bigger soapbox.

This is a lot less true online where users have practically unlimited choices. The web is littered with lavishly funded corporate propaganda that gets a fraction of the traffic of grassroots blogs like Boing Boing. When people have lots of choices, they aren’t likely to stick around very long at a site that dishes up corporate talking points. So while deep pockets will always be an asset in politics, they won’t give 21st century corporations the huge advantages they gave to 20th century corporations.

So I’m not thrilled at the idea of Fortune 500 companies spending a ton of money on bogus “issue ads.” But I think the dangers of such ads are frequently exaggerated. I’m far more worried about preserving the right of organizations like the ACLU to spread their message. And I don’t see any plausible way to stop the former without seriously restricting the latter. So I’m glad to see the Supreme Court take the words of the First Amendment — “Congress shall make no law” — literally.

Secretary Clinton on Free Speech

Secretary of State Hillary Clinton gave a major speech on Internet freedom today. The text has been posted on the State Department web site, and Adam Thierer has a review of it up on the TechLiberationFront blog.

As a signal to other governments, it was a good speech. It placed the United States government on the side of freedom movements around the world and extolled how technology empowers them.

From a domestic perspective, it was nothing special. References to the liberating power of the Internet were carefully caveated with cautions about online dangers that could justify government intrusion on the Internet. Secretary Clinton was particularly equivocal about online anonymity.

The irony, of course, was provided by the breaking news of the day: the Supreme Court’s decision in Citizens United, discussed by my colleagues here, here, and here, as well as in this podcast. The case dealt with speech critical of Secretary Clinton produced by a corporation during her candidacy for the presidency. It reversed precedents allowing a ban on corporate and union speech about political candidates.

The Court said in Citizens United:

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.

The fact that speech issues from people organized as corporations or unions makes no difference.

In her speech, Secretary Clinton echoed similar themes. “Countries that censor news and information must recognize that from an economic standpoint, there is no distinction between censoring political speech and commercial speech.” Perhaps she was trying to distinguish between economic consequences of speech and other consequences, but later she said:

[C]ensorship should not be in any way accepted by any company from anywhere. And in America, American companies need to make a principled stand. This needs to be part of our national brand. I’m confident that consumers worldwide will reward companies that follow those principles.

The Citizens United case is the product of a company taking such a stand, though not in the way Secretary Clinton meant it.

Later in the day, the White House issued the following statement about the Citizens United free speech case:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.

So much for free speech.

Democracy Will Survive Citizens United

At Politico Arena, today’s focus is on the Court and campaign finance.

My comment:

The ink is barely dry on today’s Citizens United opinion, and the hysteria has already begun.  Set aside the misunderstandings we’re seeing in some of the comments here at the Arena – corporations still cannot, for example, contribute directly to campaigns – even some of those who understand the law and this decision would have us believe that the world as we know it is coming to an end.  Thus, the inimitable Rick Hasen, whose knowledge of these issues is second to none, tells us that “today’s Supreme Court opinion marks a very bad day for American democracy.”  And attorneys at NYU’s Brennan Center, which made its reputation promoting campaign finance “reform,” head up their post with this: “After the Flood: How to Save Democracy Post Citizens United.”  One imagines the Dark Ages just beyond the gloaming.
 
Over on the Hill, meanwhile, Senator Russ Feingold, who’s having a bad day in what must for him be a bad week, promises darkly, “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.”
 
Relax.  Half of our states, states like Virginia, have minimal campaign finance laws, and there’s no more corruption in those states than in states that strictly regulate.  And that’s because the real reason we have this campaign finance law is not, and never has been, to prevent corruption.  The dirty little secret – the real impetus for this law – in incumbency protection.  How else to explain the so-called Millionaire’s Amendment, which the Court struck down in 2008.  That little gem in the McCain-Feingold “reform” package exempted candidates (read: incumbents) from the law’s strictures if they were running against a self-financed “millionaire,” who could not be prohibited from spending his own money campaigning.  Thus, the nominal rationale for the incomprehensible edifice we call “campaign finance law” – to prohibit corruption – suddenly disappeared if you were running against a millionaire.  Well, the Court, fortunately, saw right through that.  And a majority on the Court saw the light in today’s decision, too.  The First Amendment is not a “loophole.”  It’s the very foundation of our democracy, and we are the stronger today for this decision.

The Empire Strikes Back

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.

Supreme Court Ruling on Hillary Movie Heralds Freer Speech for All of Us

Today the Supreme Court struck a major blow for free speech by correctly holding that government cannot try to “level the political playing field” by banning corporations from making independent campaign expenditures on films, books, or even campaign signs.

As Justice Kennedy said in announcing the opinion, “if the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.”

While the Court has long upheld campaign finance regulations as a way to prevent corruption in elections, it has also repeated that equalizing speech is never a valid government interest.

After all, to make campaign spending equal, the government would have to prevent some people or groups from spending less than they wished. That is directly contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions about the freedom of speech.

No case demonstrates this idea better than Citizens United, where a nonprofit corporation made no donations to candidates but rather spent money to spread its ideas about Hillary Clinton independent of the campaigns of primary opponent Barack Obama, potential general election opponent John McCain, or any other candidates. Where is the “corruption” if the campaign(s) being supported have no knowledge, let alone control over what independent actors do? – be they one person, two people, or a large group?

Today’s ruling may well lead to more corporate and union election spending, but none of this money will go directly to candidates – so there is no possible corruption or even “appearance of corruption.” It will go instead to spreading information about candidates and issues. Such increases in spending should be welcome because studies have shown that more spending — more political communication — leads to better-informed voters.

In short, the Citizens United decision has strengthened both the First Amendment and American democracy.

For more background on the case, here’s a primer:

Sacrificing Liberties in the Name of Security

The new Justice Department Inspector General report finds that the FBI broke the law in seeking phone records.  Reports Jacob Sullum of Reason magazine:

In a report (PDF) issued today, Justice Department Inspector General Glenn Fine shows that the FBI routinely broke the law for several years by demanding telephone records through informal methods that were not authorized by statute. The abuses, which involved thousands of records, are especially striking because it is not very hard for the FBI to obtain this information legally. The Electronic Communications Privacy Act (ECPA) allows the bureau to demand records from phone companies through a “national security letter” (NSL) signed by the director or an official he designates. Under FBI policy, any special agent in charge can sign an NSL, which simply states that the records sought are “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”

In 2003 FBI officials began dodging this minimal requirement by asking telecommunications carriers to suppy records without the legally required NSL “due to exigent circumstances” and promising to provide an NSL after the fact. These so-called exigent letters, which were often used when no emergency actually existed, were an extralegal contrivance that violated ECPA, bureau policy, and guidelines issued by the attorney general. The retroactive NSLs promised by the exigent letters often failed to appear because there was no authorized investigation to which they could be linked. To fix that problem, FBI officials resorted to another illegal procedure, issuing “blanket” NSLs tied to no particular investigation.

Even these pseudolegalities look downright upright next to the FBI’s other informal methods of obtaining records, which included requests by email, phone, post-it note, and in-person oral communication as well as “sneak peeks,” which were about as legitimate as they sound. The failure to follow the established NSL process is legally significant because ECPA prohibits telecom companies from disclosing customer records to the government except in specified circumstances. One of them is not when an FBI agent shows up at your office and says, “Mind if I take a look at that?”

The targets of the FBI’s illegal record grabs are unknown, with one major exception. “Some of the most troubling improper requests for telephone records,” the inspector general’s report notes, “occurred in media leak cases, where the FBI sought and acquired reporters’ telephone toll billing records and calling activity information without following federal regulation or obtaining the required Attorney General approval.” In 2008 FBI Director Robert Mueller apologized for the bureau’s improper snooping on foreign correspondents for The New York Times and The Washington Post.

Obviously, federal agencies require investigative authority to combat terrorism and other crimes.  But those investigations need to be conducted in accordance with the law and Constitution.  We must never forget that it is a free society which we are defending.

Filibuster Obama Nominees? I’m Shocked!

At Politico Arena today, Clinton’s acting U.S. Solicitor General Walter Dellinger worries that after yesterday’s vote in Massachusetts, Obama’s Supreme Court nominees may be subject to Republican filibusters.

My response:

Walter, my good friend, where were you all during the Bush ‘43 years? I recall seeing you often in town, when you weren’t teaching down in Durham.  But if I may judge from your Arena concern today that Republican senators, after the late unpleasantry in Massachusetts, may now filibuster an Obama Supreme Court nominee, you must have missed the unprecedented and repeated Democratic filibusters of Bush appellate court nominees over several of those years.  Did you forget that after the Democrats took control of the Senate in May 2001, following Jim Jeffords becoming an Independent, eight of Bush’s first eleven May 2001 appellate court nominees had not had so much as a Judiciary Committee hearing as we were coming down to the 2002 elections?  And after the Democrats lost control of the Senate in those elections, when they could no longer stall by refusing to hold hearings, they moved to the filibuster – over no fewer than ten nominees.  Did you forget that our good friend, the eminently qualified Miguel Estrada, one of Bush’s May 2001 nominees, finally withdrew his name from consideration in September 2003, after 28 months in limbo and six failed cloture votes?

To be sure, those were appellate court nominees, but the principle is the same – and Bush’s Supreme Court nominees escaped a filibuster, let me remind you, only after the “gang of 14” finally reached a compromise, failing which the “nuclear option” would have brought an end to the unprecedented Democratic filibuster of Bush’s nominees.  (I ignore the 1968 Abe Fortas case, which had special circumstances.)

If Republicans were to filibuster an Obama nominee, therefore, instructions for doing so would be readily at hand.  I’m not suggesting they do so, however.  The filibuster is, as you know, an extra-constitutional procedure, with something of a checkered history.  For better or worse, it has served as an additional check on the passions of the lower chamber, but its use for executive nominations, as distinct from legislation, raises difficult separation-of-powers questions, which are your main concern, I’m sure.