Supreme Court: Campaign-finance limits violate free speech

The Supreme Court campaign finance ruling on Thursday means corporations can spend freely on political ads leading up to elections. The Thursday decision invalidates a part of 2002 McCain-Feingold campaign-finance reform law that sought to limit corporate influence.

By , Staff writer

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    Common Cause President Bob Edgar (r.) and Public Campaign President Nick Nyhart (l.), accompanied by Public Campaign Legal Center Executive Director Gerald Hebert (c.), lambast the Supreme Court's campaign-finance ruling during a news conference Thursday outside the Supreme Court in Washington.
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    In this Jan. 25, 2006 file photo, Sen. John McCain, R-Ariz., left, chats with Sen. Russ Feingold, D-Wis. on Capitol Hill in Washington. The Supreme Court on Thursday, struck down a major portion of a 2002 campaign-finance reform law, saying it violates the free-speech right of corporations to engage in public debate of political issues.
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The US Supreme Court has struck down a major portion of a 2002 campaign-finance reform law, saying it violates the free-speech right of corporations to engage in public debate of political issues.

In a landmark 5-to-4 decision announced Thursday, the high court overturned a 1990 legal precedent and reversed a position it took in 2003, when a different lineup of justices upheld government restrictions on independent political expenditures by corporations during elections.

“Government may not suppress political speech on the basis of the speaker’s corporate identity,” Justice Anthony Kennedy wrote in the 57-page majority opinion. “No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”

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Ahead, a flood of corporate/union election spending?

The decision opens the gates for what campaign reform advocates warn will be a flood of corporate spending in future elections. The ruling is expected to permit similar political expenditures from the general treasuries of labor unions, as well.

“This is the most radical and destructive campaign-finance decision in the history of the Supreme Court,” said Fred Worthheimer, president of Democracy 21.

“Today’s decision is the Super Bowl of really bad decisions. It returns us to the days of the robber barons,” said Bob Edgar, president of Common Cause.

Among political leaders, Democrats attacked the decision and Republicans praised it.

Senate Republican leader Mitch McConnell of Kentucky lauded the decision as “monumental.” Texas Sen. John Cornyn said he was pleased by the decision. “These are the bedrock principles that underpin our system of governance and strengthen our democracy,” he said.

From the White House, President Obama called the ruling a “major victory for big oil, Wall Street banks, health insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

Electioneering vs. free speech

At issue was a provision of the Bipartisan Campaign Reform Act (BCRA), commonly referred to as the McCain-Feingold law. Section 203 of the law barred corporations and labor unions from using general treasury funds to pay for advertisements or other broadcasts that mention a political candidate in a way that Federal Election Commission officials might view as electioneering. The ban applied 30 days before any primary and 60 days before a general election.

Campaign-reform advocates said the provision was necessary to prevent a proliferation of noncandidate advertisements (paid for by wealthy corporations and unions) from crowding out the candidates’ own campaign ads.

Critics of the regulation said it amounted to unconstitutional censorship. They argued that corporations should enjoy a First Amendment right to spend money and advocate political and policy positions during election seasons just as individuals can.

On Thursday, the Supreme Court agreed with the critics. “Rapid changes in technology – and the creative dynamic inherent in the concept of free expression – counsel against upholding a law that restricts political speech in certain media or by certain speakers,” Justice Kennedy wrote. “The First Amendment does not permit Congress to make … categorical distinctions based on the corporate identity of the speaker and the content of the political speech.”

The dissent: 'integrity of elected institutions' at stake

In a 90-page dissent, Justice John Paul Stevens denounced the majority opinion as a dangerous rejection of common sense. “While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics,” he wrote.

“The court’s ruling threatens to undermine the integrity of elected institutions across the nation,” he said.

The high court decision leaves intact campaign contribution regulations – including laws barring campaign contributions to federal candidates from corporations and unions. It also leaves intact laws barring so-called soft-money contributions to political parties.

Corporate disclosure still required

In a second portion of its decision, the Supreme Court voted 8 to 1 to uphold a portion of BCRA requiring corporations and others to disclose their involvement in political advertisements. Those disclosures include identifying who is responsible for the content of an advertisement and who contributed money to support the making of the advertisement.

The lone dissent in that portion of the decision came from Justice Clarence Thomas.

In the main portion of the decision, Kennedy was joined by Chief Justice John Roberts and Justices Thomas, Antonin Scalia, and Samuel Alito.

Justice Stevens’ dissent was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

The major shift in the high court’s campaign-finance jurisprudence was made possible by the retirement of Justice Sandra Day O’Connor a few years ago and the arrival of her replacement, Justice Alito. The decision also represents a move by Chief Justice Roberts away from a middle-ground compromise he attempted to broker in a prior campaign finance case. Instead, he has now apparently moved toward a broader accord with the high court’s conservative wing on campaign finance issues.

The chief justice addressed this shift in a concurring opinion joined by Alito. During his confirmation hearing, Roberts told the Senate in often quoted remarks that he would be a judicial minimalist who would follow the rule that "if it is not necessary to decide more, it is necessary not to decide more."

But this case was different, the chief justice wrote in his concurrence. It required a broad ruling, he said. “There is a difference between judicial restraint and judicial abdication,” he added.

Previous Supreme Court ruling invalidated

In reaching its decision, the court invalidated a 1990 Supreme Court ruling, Austin v. Michigan Chamber of Commerce, which first established the legal approach adopted in Section 203 of BCRA. The Austin decision justified restrictions on corporate expenditures to prevent wealthy special interests from distorting the campaign playing field and dominating the marketplace of ideas.

The majority justices said the government restrictions interfered with the open marketplace of ideas rather than protected it. “By suppressing the speech of manifold corporations, both for-profit and non-profit, the government prevents their voices and viewpoints from reaching the public,” Kennedy wrote.

“When 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. This is unlawful,” Kennedy wrote. “The First Amendment confirms the freedom to think for ourselves.”

Role of 'Hillary: The Movie'

The decision comes in a case called Citizens United v. Federal Election Commission. The case involved a decision by the FEC to block video-on-demand broadcasts of a 90-minute documentary attacking the potential presidential candidacy of Hillary Rodham Clinton.

The film, “Hillary: The Movie,” was produced by Citizens United, a conservative nonprofit corporation. The group complained that the FEC action was unconstitutional censorship of political speech.

The agency responded that the documentary was similar to a pre-election broadcast attack advertisement and thus could be regulated by the FEC under BCRA.

Citizens United filed suit, arguing before a three-judge panel that the McCain-Feingold law was unconstitutional in the way it was being enforced by the FEC against “Hillary: The Movie.”

The panel disagreed. It ruled that the documentary was the functional equivalent of electioneering and that Citizens United must disclose the documentary’s financial supporters if it wanted to run broadcast ads during election season.

In its ruling on Thursday, the high court upheld the lower court’s ruling on the disclosure issue but reversed on the constitutional challenge.

[Editor's note: The photo caption was revised to correctly identify the people in the picture.]

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