Supreme Court Blocks Ban on Corporate Political Spending - NYTimes.com
Tom Davos
Supreme Court Blocks Ban on Corporate Political Spending - NYTimes.com
WASHINGTON b Overruling two important precedents about the First
Amendment rights of corporations, a bitterly divided Supreme Court on
Thursday ruled that the government may not ban political spending by
corporations in candidate elections.
Luke Sharrett/The New York Times
The 5-to-4 decision was a vindication, the majority said, of the First
Amendmentbs most basic free speech principle b that the government has
no business regulating political speech. The dissenters said that
allowing corporate money to flood the political marketplace would
corrupt democracy.
The ruling represented a sharp doctrinal shift, and it will have major
political and practical consequences. Specialists in campaign finance
law said they expected the decision to reshape the way elections were
conducted. Though the decision does not directly address them, its
logic also applies to the labor unions that are often at political
odds with big business.
The decision will be felt most immediately in the coming midterm
elections, given that it comes just two days after Democrats lost a
filibuster-proof majority in the Senate and as popular discontent over
government bailouts and corporate bonuses continues to boil.
President Obama called it ba 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.b
The justices in the majority brushed aside warnings about what might
follow from their ruling in favor of a formal but fervent embrace of a
broad interpretation of free speech rights.
bIf the First Amendment has any force,b Justice Anthony M. Kennedy
wrote for the majority, which included the four members of the courtbs
conservative wing, bit prohibits Congress from fining or jailing
citizens, or associations of citizens, for simply engaging in
political speech.b
The ruling, Citizens United v. Federal Election Commission, No.
08-205, overruled two precedents: Austin v. Michigan Chamber of
Commerce, a 1990 decision that upheld restrictions on corporate
spending to support or oppose political candidates, and McConnell v.
Federal Election Commission, a 2003 decision that upheld the part of
the Bipartisan Campaign Reform Act of 2002 that restricted campaign
spending by corporations and unions.
The 2002 law, usually called McCain-Feingold, banned the broadcast,
cable or satellite transmission of belectioneering communicationsb
paid for by corporations or labor unions from their general funds in
the 30 days before a presidential primary and in the 60 days before
the general elections.
The law, as narrowed by a 2007 Supreme Court decision, applied to
communications bsusceptible to no reasonable interpretation other than
as an appeal to vote for or against a specific candidate.b
The five opinions in Thursdaybs decision ran to more than 180 pages,
with Justice John Paul Stevens contributing a passionate 90-page
dissent. In sometimes halting fashion, he summarized it for some 20
minutes from the bench on Thursday morning.
Joined by the other three members of the courtbs liberal wing, Justice
Stevens said the majority had committed a grave error in treating
corporate speech the same as that of human beings.
Eight of the justices did agree that Congress can require corporations
to disclose their spending and to run disclaimers with their
advertisements, at least in the absence of proof of threats or
reprisals. bDisclosure permits citizens and shareholders to react to
the speech of corporate entities in a proper way,b Justice Kennedy
wrote. Justice Clarence Thomas dissented on this point.
The majority opinion did not disturb bans on direct contributions to
candidates, but the two sides disagreed about whether independent
expenditures came close to amounting to the same thing.
bThe difference between selling a vote and selling access is a matter
of degree, not kind,b Justice Stevens wrote. bAnd selling access is
not qualitatively different from giving special preference to those
who spent money on onebs behalf.b
Justice Kennedy responded that bby definition, an independent
expenditure is political speech presented to the electorate that is
not coordinated with a candidate.b
The case had unlikely origins. It involved a documentary called
bHillary: The Movie,b a 90-minute stew of caustic political commentary
and advocacy journalism. It was produced by Citizens United, a
conservative nonprofit corporation, and was released during the
Democratic presidential primaries in 2008.
Citizens United lost a suit that year against the Federal Election
Commission, and scuttled plans to show the film on a cable
video-on-demand service and to broadcast television advertisements for
it. But the film was shown in theaters in six cities, and it remains
available on DVD and the Internet.
The majority cited a score of decisions recognizing the First
Amendment rights of corporations, and Justice Stevens acknowledged
that bwe have long since held that corporations are covered by the
First Amendment.b
But Justice Stevens defended the restrictions struck down on Thursday
as modest and sensible. Even before the decision, he said,
corporations could act through their political action committees or
outside the specified time windows.
The McCain-Feingold law contains an exception for broadcast news
reports, commentaries and editorials. But that is, Chief Justice John
G. Roberts Jr. wrote in a concurrence joined by Justice Samuel A.
Alito Jr., bsimply a matter of legislative grace.b
Justice Kennedybs majority opinion said that there was no principled
way to distinguish between media corporations and other corporations
and that the dissentbs theory would allow Congress to suppress
political speech in newspapers, on television news programs, in books
and on blogs.
Justice Stevens responded that people who invest in media corporations
know bthat media outlets may seek to influence elections.b He added in
a footnote that lawmakers might now want to consider requiring
corporations to disclose how they intended to spend shareholdersb
money or to put such spending to a shareholder vote.
On its central point, Justice Kennedybs majority opinion was joined by
Chief Justice Roberts and Justices Alito, Thomas and Antonin Scalia.
Justice Stevensbs dissent was joined by Justices Stephen G. Breyer,
Ruth Bader Ginsburg and Sonia Sotomayor.
When the case was first argued last March, it seemed a curiosity
likely to be decided on narrow grounds. The court could have ruled
that Citizens United was not the sort of group to which the
McCain-Feingold law was meant to apply, or that the law did not mean
to address 90-minute documentaries, or that video-on-demand
technologies were not regulated by the law. Thursdaybs decision
rejected those alternatives.
Instead, it addressed the questions it proposed to the parties in June
when it set down the case for an unusual second argument in September,
those of whether Austin and McConnell should be overruled. The answer,
the court ruled Thursday, was yes.
bWhen government seeks to use its full power, including the criminal
law, to command where a person may get his or her information or what
distrusted source he or she may not hear, it uses censorship to
control thought,b Justice Kennedy wrote. bThis is unlawful. The First
Amendment confirms the freedom to think for ourselves.b