Today, the Supreme Court issued a long-awaited ruling in Citizens United v. FEC, the case about “Hillary: the Movie” that decided whether restrictions upon corporate financing of political advertising impermissibly infringed upon the first amendment rights of those corporations. The 5-4 decision upheld the disclosure and disclaimer portions of the campaign finance law for corporate-financed “electioneering communications,” but struck down on first amendment grounds the restrictions on use of corporate treasury funds to finance such communications.
(What, you thought corporations didn’t have their own constitutional rights? Silly wabbit.)
The opinion is 176 pages long, and I’ll be perfectly honest: I haven’t read it. I might not ever read it, because that would take HOURS. I have read the syllabus, some snippets of the opinion and others’ snap analysis, however. The gist as I understand it is that the Supreme Court had previously recognized that corporate speech is protected by the first amendment to a degree admittedly less than individual speech, but not much less. Any law that restricts speech based upon its content (as a law directed only at political speech does) is subject to strict scrutiny, meaning it “must serve a compelling governmental interest and be narrowly tailored to achieve that interest.” The campaign finance restriction at issue did not fit the bill, according to Justice Kennedy and the conservative wing of the Court.
In so ruling, the majority overruled two precedents directly on point–Austin v. Michigan Chamber of Commerce, and McConnell v. FEC. This was not terribly surprising, however, since the Court had declined to rule in this case last term after oral argument, and had asked the parties to re-brief and re-argue the case with specific attention paid to whether Austin and McConnell should be overturned. Essentially, Kennedy directly asked Solicitor General Elena Kagan to give him one good reason not to invalidate the provision and uphold the freedom of speech of corporations, and apparently she did not provide him with one.
The end result is not great, but will have less practical impact on elections than people might believe from reading the immediate press coverage. As the opinion noted, corporations already had the power under the law to fund political speech through corporate-created and controlled political action committees. So, all this change really does is eliminate the need for a middleman PAC if a corporation wishes to get into the electioneering business. In addition, the restrictions on corporate electioneering statements also arguably impacted organized labor’s political speech, and today’s ruling should positively impact unions’ first amendment rights as well.
Of course the more troubling aspect is that this ruling solidifies and firmly entrenches the first amendment rights held by business entities that are created entirely by operation of law. (If this seems weird to you, it has never made much sense to me either.) Justice Scalia’s concurrence actually goes to great pains to justify the holding that corporations have full first amendment rights, and if there is one part of the opinion that you are inclined to read, that might be it. He essentially argues that first amendment protection for corporations fits with original intent, and it’s rather amusing to watch him do some seriously kama sutra-esque contortion to make that decidedly modern argument fit his olde world legal philosophy.
It is difficult to forecast how this will impact future cases in years to come. While I favor a robust first amendment as a general rule, I personally believed that reasonable campaign finance restrictions were not a bad idea and could be enacted without impermissibly restriction first amendment rights. I also have long feared what a flood of unregulated corporate money meddling into future elections will do to the fairness of those elections and what kind of public officials it will leave us with. Having said that, the presidential candidates in 2008 raised and spent over $2.4 billion even with the restrictions struck down today operating firmly in place, so it’s hard to argue that the influence of money in politics can get much worse than it is right now. At least the rise of individuals making small donations over the internet has levelled the playing field a bit from where it was when McCain-Feingold was passed, and that trend is likely to continue.
If any soul is braver than I and wants to read the entire ruling for yourself, it is in pdf format here. Justice Kennedy’s majority opinion is 57 pages, Justice Stevens’ apparently blistering dissent is 90 pages.
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