Law in Contemporary Society

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CitizensUnitedCaseNotes 1 - 05 Feb 2010 - Main.AndrewCascini
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META TOPICPARENT name="CitizensUnitedVFederalElectionCommission"
So I make no claims this is totally on point, but these are the notes that I took while I actually, you know, READ the damn case for once. I tried to partition this best I could, so the opinion should match up with these notes, at least a little.

MAJORITY, written by Kennedy

I – Historical Background -Case is in response to Bipartisan campaign reform act (2002). This is 2 USC 441b. -This federal law prohibited corporations and unions from using general treasury funds to make independent expenditures for “electioneering communication”that are “publically distributed” and that are referring directly to a candidate. They can, however, still keep a “separate segregated fund” open for these purposes however, and that is restrained to DONATIONS from employees/stockholders. -Direct contributions from corporations/unions to candidates has been and still is forbidden. -The BCRA had been challenged before in McConnell? v FEC, which relied a whole lot on Austin v Michigan Chamber of Commerce -AUSTIN held that political speech might be banned based on the speaker’s corporate identity, which Scalia wrote about in an earlier opinion, saying that it was a “significant departure from ancient First Amendment principles.” -Citizens United (“CU”) is a non-profit. -The case stems from a tiff over that “Hillary: The Movie” business. There’s a Wikipedia page on that if you’re interested.

II – can CU’s claim be resolved without addressing whether or not Austin should be overruled?

A – Might 441b not actually APPLY here? - CU’s first argument is that 441b doesn’t actually apply to Hillary the Movie because the film isn’t an electioneering communication. -The majority gingerly disagrees, but takes the argument that it WASN’T “publically distributed” from the contention (the movie was supposed to be broadcast through video on demand only, apparently). - There’s a detour here where the majority discusses an amicus brief, which urges the statute to be interpreted to mean that the “publically distributed” requirement only refer to the “potential likelihood” that over 50K people will see the electioneering communication. The majority argues that this is a bad standard because it’s difficult to ascertain, and that it provides an untenable limit on free speech because it would require “conduct[ing] demographic marketing research” before discussing political issues. -The majority thus determines that Hillary is covered by 441b.

B – can we use the approach in WRTL to clear up this mess? - So in McConnell? (look above), it was held that 441b’s definition of an electioneering campaign was facially constitutional because it restricted speech that was “express advocacy” for or against a candidate. - WRTL, a later case, looked at McConnell? and decided that 441b could be applied unconstitutionally if it was used in a case where the speech wasn’t express advocacy. - Won’t help us here, though, because Hillary WAS express advocacy according to the majority. It’s not a documentary as CU claims. Portions of the movie are quoted to support this.

C – can we modify 441b to carve out an exception for video-on-demand broadcasts? - This would require accepting the argument that movies shown through video-on-demand have a lower risk of “distorting the political process.” This would be because the viewer has to take a ton of affirmative steps to view the message through the on-demand service. You have to buy the cable package, get it installed, order the message, etc. - Majority doesn’t want to mess with sorting this out because it would “raise questions about the court’s authority” and the technological distinctions would quickly become irrelevant or outdated (will on-demand TV even be around in five years?) - Also this presents substantial 1st Amendment problems as we sort where speech can be chilled and where it cannot.

D – might it matter if CU is a non-profit, and if CU’s funding was provided “overwhelmingly” by individuals? - In MCFL (another USSC case), 441b’s restrictions were found to be unconstitutional when they were applied to non-profit corporations that don’t engage in business activities. - CU does not qualify for this exception, though, as some of the funds used to make the movie were donated from corporations. - ALSO here is where several amendments to the BCRA are discussed: the WELLSTONE Amendment and the SNOWE-JEFFORDS Amendment. The WELLSTONE Amendment extends the 441 ban to all nonprofits. The SNOWE-JEFFORDS amendment modifies the Wellstone, exempting certain non-profits from being covered by 441 if the speech is funded exclusively by individual donors. CU doesn’t fall under the Snowe-Jeffords Amendment because of those damn corporate donors. - So one possible solution to avoid overruling AUSTIN (that’s the one that upheld the BCRA) is to get rid of the WELLSTONE amendment and construe the Snowe-Jeffords Amendment broadly, which would carve out an exception for Hillary the Movie and allow the court to move on. The majority is afraid of the precedent this would set, though, because you’d have to case-by-case every message similar to Hillary from now until forever if you accepted this solution.

E – The Court can’t resolve all this on narrower ground - It’s not appropriate to accept a narrow argument just to avoid having to make an argument with broader implications, says the majority. The result is that the Court clearly needs to reconsider Austin. - CU is actually making a very old claim – that the BCRA restricts free speech and doesn’t provide it with rights guaranteed under the first amendment. To characterize the claim as technically different would just be avoiding this central question. - Besides, Austin was hotly contested too. Perhaps reanalysis is necessary. - There’s another problem with resolving things in case-by-case lawsuits too – this takes a long time. If things stay the way they presently are, corporations/organizations could just put out any old electioneering message right before the election, reap the effects, and then wait until our sloth-like court system decides on the validity of the message later. - Also there’s the importance of free-speech to consider towards the election process itself, and the possibility that the restrictions placed on it might deter speech that would be found to be OUTSIDE of the BCRA but would be restrained out of fears that courts might deter it.

III – First Amendment ramifications - Laws get struck down all the time for reasons of interfering with the first amendment. STRING CITE! - 441b is a criminal statute. - Several examples are given of what would be illegal under 441b and the majority calls these examples blatant censorship. - 441 is still a ban on the free speech of corporations even if we keep the exception for political action committees. This is because the PAC is a free-standing organization, so when it makes messages IT speaks, and not the corporation. - Administering PACs are really hard to do. This might explain why so few of the corporations in this country have PACs. - There’s another problem with PACs – they take a long time to set up. Thus, a corporation that desires to speak may not be able to get a PAC up in time before the election. - 441b, were it to apply to individuals, would clearly by objectionable. - Political speech must always prevail over laws designed to suppress it. - Even short of regulating content, the government acts Unconstitutionally when it identifies “preferred” speakers. Majority points out that the First amendment protects both speech and speakers. - That being said, the Government may and has restricted free speech in some cases where that speech might interfere with vital government functions, however. Some cases are cited in which this has happened. But the political process of voting is different and speech regarding it must be kept “free to obtain information from diverse sources in order to determine how to cast votes.”

A – Corporations and the First Amendment

- USSC has held that 1st Amendment protection generally extends to corporations. - Political speech doesn’t lose 1st Am. Protection just because the source is a corporation. - Corporations contribute to the discussion, debate and dissemination of information. - In 1947, there was an attempt to restrict the free speech rights of corporations/unions called the Labor Management Relations Act (LMRA). Truman didn’t like it, and vetoed it, which the Congress overrode. The issue got brought up in court a year later, but the court looked at the narrow interpretation of the statute to the case as opposed to questioning the Constitutionality of the statute. The court remanded a similar case without sorting out the Constitutional ramifications in US v Automobile Workers nine years later. The dissent in that case however DID confront the Constitutional question, and determined that people should have access to “the views of every group in the community,” and concluded that free speech should not be restricted just because a group was held to be “too powerful.” - There was a case called BUCKLEY in 1974 that was over the Constitutionality of 610 of FECA, an “independent expenditure ban” that applied both to individuals as well as corporations and labor unions. - In Buckley, the court UPHELD limits that FECA presented to direct contributions to candidates. This was done to prevent corruption and the appearance of corruption. The majority writes here that it stands to reason that the direct contributions to candidates from corporations/unions would be similarly limited. BUT these direct contributions were distinguished from individual expenditures, which did not pose a similar problem. This case did NOT present a comprehensive questioning of “independent expenditures” by corporate and union sources, though, and the language of 610 was re-codified in 441b, which is the very statute that is being challenged here! - The next case dealing with this issue was BELLOTTI, in which the court decided that the Government couldn’t restrict political speech based upon the corporate identity of the speaker, although Bellotti wasn’t over 441 but rather over a state-law that prevented corporations from speaking out regarding state referenda. - AUSTIN was next, which was referenced above. There, the Michigan Chamber of Commerce sought to use general treasury funds to run an ad supporting a candidate. A MI law prohibited this, however, and the USSC upheld the law, although Kennedy is quick to note that he dissented. This was the reasoning: the government has a compelling interest to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little to no correlation to the public’s support for the corporation’s political ideas.” This is called the ANTIDISTORTION interest.

B – The Government’s argument, with respect to the case history

- So it’s clear there’s one line of case law, and then there’s another direction taken by Austin. - The Government doesn’t purely rely on Austin’s antidistortion interest, however. Instead, there are two other compelling interests: an ANTICORRUPTION interest, and a SHARE-HOLDER PROTECTION interest. The court notes that Stephens likes the Anti-corruption one, whereas Brennan prefers the share-holder protection interest.

1 – ANTIDISTORTION - Majority says rationale can’t support 441b. - Would we accept this, it would permit the government to ban political speech based purely upon the form of the speaker. This would EXPAND the rights of the government even beyond 441b – no political books could be allowed, for example. - Again, unfettered free speech is really important to the political process. Austin defends the rationale of its holding by asserting that the Government has an interest in “EQUALIZING RELATIVE ABILITY of individuals and groups to influence elections.” But the majority says this is contradicted by the first Amendment, which prohibits suppression of speech based on the identity. - Austin’s majority was quick to note that wealthy individuals wouldn’t be affected by restrictions against corporations by analogy because corporations are different than wealthy people in several distinct ways – “limited liability, perpetual life, favorable treatment of accumulation of assets.” Thus, Austin attempted to limit its holding to corporations and not to wealthy people. - Majority argues that the first amendment protects resulting speech even if its enabled by transactions with persons who disagree with the speaker’s ideas. - The majority also doesn’t like the corporate exception made for media corporations, because it sees the exception as invalidating the greater antidistortion rationale. Media corporations would be allowed to speak under the holding of AUSTIN, whereas “non-media” corporations would not, and this differential treatment “cannot be squared with the first amendment.” - Majority admits that perhaps the framers couldn’t have anticipated the modern interplay between business and media, but business and media ARE intertwined and the 1st amendment clearly doesn’t allow suppression of political speech in the media. - Majority says that banning corporations because of their distorting effects on speech forms an incoherent distinction, because not all corporations are so huge as to create a distorting effect. Thus, by drawing that boundary you’re excluding people’s free speech right upon a basis that the small corporation couldn’t possibly actualize. - Majority says that the best way to check factions is to allow everyone to speak, and the fact that this speech will be public will allow everyone to weigh the speech independently.

2 – ANTICORRUPTION - Majority says this rationale can’t support 441b. - Says that there are already bribery laws in effect to stem this problem. - Interest here is “not sufficient to displace the speech in question.” - Majority says that this argument is based on dicta from Bellotti. In a footnote there, it is said that “a corporation’s right to speak on issues of general public interest implies NO comparable right in the quite different context of participation in a political campaign or election to public office.” This is so because the Congress might be able to show that independent expenditures of corporations can influence candidate elections. - Majority rejects this argument at least in part because the fact that speakers can have influence over access to elected officials doesn’t mean that the officials are corrupt. Favoritism and influence aren’t avoidable in representative politics. And the appearance of influence won’t cause the electorate to lose faith in democracy. - The majority says that corruption could, in the future, become a problem, but stresses that Congress’ ability to prevent that corruption must square with the first amendment.

3 – SHARE-HOLDER PROTECTION - This argument is worried about the diverse interest of shareholders within a corporation. Imagine that a share-holder of a newspaper company disagrees with the political views expressed by that newspaper. Preventing this clash of interests gives the government the authority to restrict political speech, goes this argument. - However, this can be prevented by corporate democracy, the majority says. It declines however to define what this means. I think that the majority here is saying that the shareholder with the dissenting view has the ability to sway the corporation through shareholder meetings, and ultimately may leave the company by selling the stock. Hm. - This can’t be a reason for supporting 441b, though, because 441b bans such speech only around an election, and this could be a potential problem at any time.

4 – ISSUES ABOUT FOREIGN CORPORATIONS - Majority doesn’t feel its essential to answer the question about whether 441b helps to prevent foreign associations/individuals from influencing the political process, because 441b isn’t limited to corporations or associations that are controlled by foreigners or funded predominantly with foreign money, and thus the section would be overbroad even if the government had that interest.

C – So, are the interests compelling enough to break from the principle of stare decisis (or, that is to say, can the Court turn its back on AUSTIN)?

- The relevant factors, beyond workability, in making this decision are antiquity of precedent, reliance interests at stake, and whether the decision is well-reasoned or not. - PRECEDENT: Thus, AUSTIN should be overturned because Buckley and Bellotti were themselves overturned by Austin (I think this is saying that Austin is actually the aberration of stare decisis) and because AUSTIN relied on the antidistortion argument. That argument isn’t the one being used by the government to defend the Constitutionality of 441b, but it is the one that backs AUSTIN as precedent. Therefore the precedent of that ruling to determine the outcome of this case is undermined. - Another undermining effect is the “experience since its announcement” of political speech. The nation’s “speech dynamic” is changing, and corporations may have valuable expertise to add to that dynamic. - RELIANCE INTERESTS AT STAKE: There aren’t any. Parties have been prevented from acting because of these laws, and while the legislature may have enacted subsequent bans on corporate expenditures because they thought they might be Constitutional that’s not a justification for stare decisis. - AUSTIN is overruled. We’re back to Buckley/Bellotti.

D – The ramifications of Austin’s overruling

- It now provides no basis for allowing the legislature to limit independent expenditures. - Invalidates 441b’s restrictions - Means that Hillary: The Movie can’t have 441b restrictions applied to it.

IV – CU’s challenge to Disclaimer and Disclosure (“D&D”)

A – What is Disclaimer and Disclosure? - So BCRA 311 says that televised electioneering communications funded by anybody but the candidate must include a disclaimer listing who is responsible for the advertising (that’s the disclaimer part). Also, Under BCRA 201, anybody who spends more than 10K on these communications within a year must file a disclosure statement with the FEC (that’s the disclosure part). - These requirements don’t impose a ceiling on campaign-related activities and don’t stop anybody from speaking – BUCKLEY said that. In that case, the government justified making this requirement because it was essential to provide the electorate with info about the sources of spending, which would help citizens make informed choices.

B – Is the statute valid as applied to the ads for the movie?

- CU says that requiring them to disclose and disclaim is unconstitutional because government interest doesn’t “justify requiring disclaimers for any commercial advertisements.” - Court disagrees. The ads for the movie fall under the BCRA’s definition of electioneering communication, and making CU disclaim and disclose avoids confusion by making it clear that the ads aren’t funded by a candidate or a political party. - CU says that 311 is bad because it forces them to devote valuable time to the disclaimer. That argument was rejected by the court in MCCONNELL, and it is here too. - Furthermore, the court says that D&D is a way less restrictive alternative to more comprehensive regulations of speech. In MCCONNELL, even the judges that felt that 441b was unconstitutional were okay with the D&D requirements. - Also, D&D is approved in other legal areas – think lobbyist control (US v HARRISS). - CU also argues that the disclosure requirements can “chill” donations by exposing the donors to retaliation. The court rejects this because there’s no proof that there’s been any evidence of harassment or retaliation to CU donors. - Then there’s a little divergence where the court talks about how disclosure, when paired with the technology that helps such disclosure spread quickly, helps alleviate shareholder concerns. Prompt disclosure can help shareholders of corporations hold corporate officials accountable, providing transparency.

C – is the statute valid as applied to the movie?

- For the same reasons that the court upheld the application of 201 and 311 to the ads, they uphold them application to the movie.

V – Conclusions

- The majority writes about how controversial Mr. Smith Goes to Washington was when it came out, and how under AUSTIN officials could have banned the film. - The assessment of what Hillary: The Movie is should not be for the government to make, and its presence should not be banned by the government but should instead be evaluated by the public both by their ability to see the movie and by their ability to weigh the message once they have seen it.


- The legislation would ask that the First Amendment protections be confined to individuals. - Roberts wants separately to address the importance of judicial restraint and of stare decisis here.

I – Preface

- Judging the Constitutionality of an act of Congress is a big deal, and justices should refrain from doing so unless its necessary based on the case before the USSC. - Majority properly rejected the claim that 441b didn’t apply to the movie, which meant that they must consider the Constitutionality of the statute itself, and argues that to say otherwise would be judicial abdication, not judicial restraint.

II – Confronting Austin

- The case wouldn’t be a difficult one if it weren’t for Austin, because interpretation of the First Amendment is pretty simple in that Congress can’t prohibit political speech. - Austin hasn’t really ever been challenged before, so it shouldn’t be given as much stare decisis power as the dissent would desire.

A – The True Meaning of Stare Decisis

- Stare Decisis is good because it promotes “predictable and consistent development of legal principles.” So if you need to deviate from it, you’d better have a special justification. Just the same, it’s not a mechanical formula, and he cites historical examples of when its been overruled and that’s been a good thing. Instead, it’s a “principle of policy.” - Thus, if a precedent case being considered is itself an aberration, returning to the docrine that it itself overruled is actually furthering the stare decisis process (the court can’t forever be bound by “jury-rigging new and different justifications to shore up an original mistake.”).

B – Overturning Austin

- Austin was an aberration for the reasons that majority had explained – it was inconsistent with BUCKLEY before it, and with BELLOTTI. - That aside, the validity of AUSTIN’s rationale was subject to dispute even as it was made, as evidenced by the fact that there were “spirited dissents.” Not that this alone would justify overturning a past decision. - Austin is also tremendously destabilizing and threatened to “subvert our Court’s decisions even outside of the context.” As as example, a more recent case, DAVIS v FEDERAL ELECTION COMMISSION, is cited. Roberts writes that the dissent’s view is scary because it allows a speaker’s ability to persuade to provide a basis for government regulation of free and open public debate. - Additionally, Austin is horribly difficult to confine. Roberts reaffirms the problems of distinguishing between “corporations” and “press,” as an example. - Finally, the basis upon which the Austin decision was made – that is, the anti-distortion effects mentioned above – were abandoned when the government argued for Austin’s holding. The anticorruption and shareholder arguments were instead brought up in their place, but this is kind of strange – the defendant wants to point to a case as precedent while admitting that the argument that justified its holding was weak? This undermines any stare decisis power that the holding may have had in the first place. - In conclusion, Roberts is convinced that the statute as applied to CU and to Hillary violates the first amendment.


- Is being written specifically to deal with the STEVENS dissent, which I guess will rely on an originalist interpretation of the first amendment, but Scalia hates it because it doesn’t actually pertain to the text. - Scalia summarizes the argument as follows: The founders did not like corporations, thus corporations have no right to free speech. But the dissent doesn’t even rely on the Constitution to determine whether or not the founders liked corporations, it relies on “substitutes” for the text. - Even if the source is accepted, it’s hard to argue that corporations weren’t liked because there were a lot of them. - And even if we accept all of that, it’s hard to pretend that corporations today are the same as corporations to which the founders may or may not have hated – old corporations had monopoly rights, for example, which present corporations no longer have. - Overall, the dissent offers no evidence to make the suggestion that the First Amendment’s unqualified text was originally understood to exclude associated speech from protection, nor is there evidence to suggest that the First Amendment was supposed to exclude artificial legal entities. Freedom of “the press,” anyone? - We should be “celebrating, not condemning” the addition of the speech in question to the public debate.


- “Real issue is how, not if, the appellant my finance its electioneering.” - CU could have used its PAC, which is already established and has millions of dollars in assets, to produce this movie, but didn’t. All that is under dispute here is whether or not CU has a right to use its general treasury to pay for broadcasts, and even then under a 30 day period at that. - Majority keeps saying that the first amendment bars this, but that isn’t explicitly true. - The difference between natural persons and human speakers is significant because corporations aren’t actually members of society. Can’t vote. Can’t run for office, for example. But the financial resources and legal structure they constitutes them “raises concerns about their role in the process.” - Congress has attempted to limit what corporations can do regarding campaign spending since 1907 with the Tillman Act, and that acknowledges that the Legislature feels “the special characteristics of the corporate structure require particularly careful regulation.” AUSTIN was not new in that it treated individual and corporate spending as distinct. - AGREES with the D&D upholding, but dissents as to the rest.

I – Why the court shouldn’t be deciding whether or not to overrule AUSTIN

- Nobody asked the court to decide whether or not to overrule AUSTIN, instead the court “asked ourselves.” When the court declares that 203 of the BCRA is unconstitutional because corporations can’t be regulated more stringently than individuals, that’s not what the case had been originally brought to determine. The facial validity of the BCRA argument had dropped away by the point this reached the Supreme Court, and the court decided, arbitrarily in Stevens’ view, to tackle the “as-applied” question AS a facial challenge, which he characterizes as “changing the case to give themselves an opportunity to change the law.” - Thus, the court “operates with a sledge-hammer” rather than a scalpel, and this means that there hasn’t been an opportunity for a record of “actual effects” of 203. This is terrible because It means that a law drafted with a ton of evidence to justify it has now been struck down “without a shred of evidence.” - Majority says that a facial ruling needs to be necessary because if the court sorted out the as-applied challenges one by one the process would violate the First Amendment. But the possibility that future courts would misapply the Constitution doesn’t give the Court the basis to do as it wishes with the claims that come their way. If the Court was able to do that, any submission could be interpreted by the Court to entertain just about any claim. - Worse yet, by manufacturing this facial challenge, the methods advanced by the parties to resolve this issue without throwing out the whole of the statute and the caselaw are obfuscated. - Possible rulings that would not have done this: 1.) the court could rule that a feature film transferred through video-on-demand doesn’t qualify under 441b, 2.) the court could have expanded the exception from MCFL (the non-profits that don’t engage in business activities) to cover non-profits like CU that get a little bit of money from corporations, 3.) the court could have limited the breadth of the constitutional holding by declining to treat speakers and speech acts as identical.

II – Problems with this ruling and Stare Decisis

- To overturn something, there must be a justification beyond the preferences of five Justices. The central argument for why Austin should be overturned is that the court does not like Austin. - The court says that “Austin has been weakened by experience,” and thus that it should be overruled, but Stevens objects to the lack of evidence for this assertion - Also, just because this case didn’t rely on the antidistortion rationale doesn’t mean that Austin should be overruled. - Majority mentions reliance issues as being a reason to rely on stare decisis, but there are tons of reliance issues and making this ruling six years after the fact. Majority’s ruling undermines more of BCRA than was directly at issue because the act relied on delicate balances between different sources of funding. By eliminating restrictions on corporate funding, a balance that had been carefully struck between corporate spending and political party spending has been tipped in a harmful way. - Nobody has argued that Austin’s rule was impracticable, and not one single for-profit corporation, union, or State has demanded that it be overruled.

III – The “novel” ruling on the merits of Austin

- The Majority claims that Austin “banned” corporate speech. It also claims that the First amendment precludes “regulatory distinctions based on speaker identity.” It also claims that Austin was some sort of First amendment outlier.

A – The “Ban” on corporate speech

- Characterization of Austin’s holding as a “ban” is very misleading - Austin itself said there was “no imposition of an absolute ban” on corporate political spending – the evidence is PACs – and that this is constitutionally sufficient - Yes, administering a PAC isn’t easy, but neither is acting with respect to the D&D laws that the court said was constitutional. Besides, we don’t know how difficult that PACs really are to administer - It’s also easy to get around the PAC restrictions if you’re a small company by just placing ads in the names of the owner as opposed to under the names of the corporations. - 441b only regulated speech made from 1.) broadcast, cable, or satellite communications, 2.) capable of reaching at least 50K people in the relevant electorate, 3.) made within 30 days of a primary or 60 days of a general federal election, 4.) by a labor union or a non-MCFL/non-media corporation, 5.) paid for with general treasury funds and 6.) susceptible of no reasonable interpretation other than as an appeal to vote for or against the candidate. Based upon this, the notion that corporate speech has been repressed altogether is nonsense. Stevens also hates that stupid “Mr. Smith Goes To Washington” comment. - In summary, 203 is a source restriction or a time/place/manner restriction – NOT a ban

B – Identity-Based Distinctions

- There’s no “absolutist” interpretation of the first amendment; the court acknowledges that speech can be regulated based on the speaker’s identity. There’s that exception about the press, for one, and there are “routinely special restrictions” on all sorts of groups. If those restrictions reflect a “legitimate government interest” there’s not necessarily a Constitutional problem. - “Differential treatment is constitutionally suspect UNLESS justified by some special characteristic of the regulated class of speakers,” and then some examples are given where the Court has upheld these distinctions. - There’s something special about the corporate structure that legislatures have noted to require special and careful regulation, and corporations are “far from the core of political expression” because their speech interests are derived from those of their members. Corporations aren’t themselves natural persons. - Shouldn’t the logical extension from the majority’s point say that corporations should have the right to vote, since voting is an expression of speech?

C – The First Amendment Tradition

1- Originalist arguments

- The majority is saying that AUSTIN was a radical departure from the modern understanding of the first amendment, but in actuality this is the misunderstanding. - It’s tough to say what the framers would have thought about corporate speech, but what evidence there is suggests that they wouldn’t have liked the notion that corporations have unfettered free speech. Lots of old text is cited, most of which is critical of the existence of corporations or at least of the subversion possibilities. The framers didn’t have any difficulty discerning the difference between corporations and natural people. Stevens concludes by saying that “as a matter of original expectations, it seems absurd to think that the first amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy.” - There’s a lot of battling against Scalia’s comments, especially when it came to the issue of the unqualified nature of first amendment text. Stevens also counters that the text of the amendment is far from clear, and that there are understandings of what the amendment entails that aren’t there, like the inability of the executive to restrict free speech.

2 – Interpretation Arguments

- Corporate and individual political spending has been distinct in the political mind since at least 1907 with that aforementioned Tillman Act, which limited direct contributions. The report on the legislation mentioned the evils of the use of corporate money in political domains even then. The Taft-Hartley Act was also passed in 1947 which limited INDEPENDENT EXPENDITURES. FECA is just a part of this tradition. - NRWC clarified the stance that “careful legislative adjustment of federal electoral laws warrant deference,” and in AUSTIN itself the court ruled that there was substantial importance regarding the “integrity of the marketplace of political ideas.” - Corporations have several advantages that allow them to spend “prodigious” sums from their treasuries on campaign messages – that is limited liability, perpetual life, and favorable treatment of accumulation of assets – that have little to no correlation with beliefs held by natural persons. - The holding of Austin has been reaffirmed many times. Cases are cited. - FECA’s definition of prohibited expenditures is tremendously narrow so as to refine speech that would be restricted, and there’s that PAC option.

3 – Buckley and Bellotti

- The majority attempted to portray Austin as a departure from 1st amendment principles, but this is supported solely by “selectively” citing to Buckley and Bellotti. - Majority claims that Buckley’s clarified that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the first amendment.” AUSTIN’s holding, however, rested NOT on the need to equalize the relative influence of speakers upon elections, but rather upon the principle that there was a distinctive corrupting potential of corporate electoral advocacy financed by general treasury dollars. - Majority claims that Bellotti’s holding claimed that it couldn’t be clearer that distinctions between corporate and individual expenditures were forbidden, but Bellotti specifically excluded corporations’ right to speak in political campaigns in its holding. Besides, Bellotti was about barring corporations on some referenda as opposed to others, specifically tailored to prevent corporations from supporting graduated income tax amendments. Thus, Bellotti was a “viewpoint discriminatory” statute tailored to prevent a specific effect. There also was no PAC alternative for corporations to use in Bellotti. Thus, Bellotti and Austin were different circumstances and sit perfectly well beside each other. - “The only thing different in Austin was the dissent, with its stunning failure to appreciate the legitimacy of interests recognized in the name of democratic integrity since the days of the Progressives.”

IV – The Three Interests

1 – The Anticorruption Interest

- Majority believes that government interest in preventing corruption is limited to “quid-pro-quo” corruption. But the Court has recognized that Congress holds a legitimate interest in preventing mere “undue influence” on legislators. “The difference between selling a vote and selling access is a matter of degree, not of kind.” - Studies indicate that congressmen seek to have corporations run ads on their behalf, and that Americans believe that corporations get special considerations from politicians who have been supported by advertising paid for by those corporations. The point here is that there is subversion in the political process, and there is a lack of confidence in the public about that subversion. Preventing both are in the government’s interest. - But even if that’s not accepted and quid-pro-quo corruption is the only acceptable government interest, then the government still shouldn’t have lost this case to CU. Preventing quid-pro-quo corruption has never restricted the government to merely outlawing overt vote-buying or bribes. While the majority would probably agree, they say that this anticorruption interest is not sufficient to displace the speech and they would cite Buckley to this end. But Buckley never forecloses the possibility that an anticorruption rationale could justify restricting independent advocacy in the future, and since that point independent advocacy has proven to be dangerous and subversive to democracy. Several studies and actual campaign examples (Caperton, namely) are then cited. - There’s also one final point here – that analysis of the studies and the actual campaign examples should be the sorts of things that Congress should analyze, and the FCRA should be the product of that. To dismiss the congressional act without looking at the data is irresponsible and, I think Stevens is insinuating, actually steps on the boundaries of judicial restraint. Deference might not be acceptable here if there was proof that the FCRA was motivated by, say, a desire to keep incumbents in Congress, but there’s not really evidence of that.

2 – ANTIDISTORTION (I realize this is under heading “1” in the document. I’m not terribly sure why we switched to a numbering scheme there. It makes more sense to leave this as “2” for me)

- Again, corporations are different from human beings (limited liability, perpetual life, separation of ownership and control, favorable treatment of assets enhancing ability to attract and deploy capital). Some other nice differences: Corporations can be foreign controlled, unlike citizen human beings. Corporations also “inescapably structure the life of every citizen.” A corporation’s treasury is not an indication of popular support for the corporation’s political ideas. Corporations have no beliefs, no feelings, no thoughts, no desires. - For the above reasons, corporate sponsored electioneering messages are likely to impair government interests, and restrictions to prevent it are less likely to trample the first amendment. - It’s tough to know “who” is speaking when a corporation voices an opinion. Is it the shareholders? They’re pretty far removed from the day-to-day operation. Is it the officers or directors? Their fiduciary duties might prevent them from doing so. It has to be some individual within the corporation, however, but it’s possible that the electioneering message will conflict with personal convictions. Thus, if we take away the ability to use general treasury funds, no individual actual human’s free speech rights have been impinged on. - Some CORPORATIONS have urged that Congress place limits on their electioneering. Individuals who work there are worried that this might just start an arms race that will lead to falling profits and erode public trust. - The end point is that regulations such as the FCRA leave the speech of natural persons untouched. - Furthermore, the legal structure of corporations allows them to deploy financial resources few persons can match. The volume can result in the marginalization of real people. - Corporations are also pre-organized, and thus they can easily drown out large groups of natural persons who might organize because those persons won’t be as easily able to coordinate resources. - Scalia’s argument that there is no such thing as too much speech ignores the fact that ads can influence other than by the merit of the argument, and that there’s not infinite free time to contemplate all that speech. - By removing these impediments, legislation like the FCRA actually FREES “breathing room” to facilitate first amendment values.


- The concern here is to protect shareholders from coerced speech – that is, electioneering messages that don’t actually get their support. - The PAC mechanism gets rid of this problem. Don’t want to contribute? Don’t. - Stevens doesn’t understand how “corporate democracy” is going to solve the problems in the system because the right of shareholders to bring suit for breach of fiduciary duty is often obstructed.


- Disclosure and disclaimer laws are also unconstitutional, because Congress can’t abridge the right for speech to remain anonymous. - Forcing individuals to remove anonymity from their speech can cause those individuals to have intimidation repercussions, and here Thomas cites Proposition 8 and the retaliation taken upon individuals who were exposed as having contributed to political messages. - There’s also the potential ramifications of retaliation from elected officials, like in a situation where an individual funds an ad for a particular candidate and then the opposing candidate wins.

-- AndrewCascini - 05 Feb 2010

Revision 1r1 - 05 Feb 2010 - 04:48:29 - AndrewCascini
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