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Will Supreme Court decision mean profound changes in election conduct?

Original Article

The United States Supreme Court issued a decision that may result in profound changes in the conduct of future elections. During the political campaigns of 2008, a nonprofit organization named Citizens United produced a 90-minute movie titled “Hillary: The Movie,” which is very critical of Hillary Clinton. Citizens United wanted to run the movie during the campaign, but the Federal Election Commission told the group it would be a violation of federal campaign finance laws if they ran it. Citizens United filed a lawsuit to challenge that ruling.

The law in question is the Bipartisan Campaign Reform Act (better known as the “McCain-Feingold Act”), and in particular Section 203 of that law. That section says corporations and unions are prohibited from using their own money to run advertisements or publish anything else that is critical or supportive of a named candidate. The ban applies only in federal elections, and is only in effect within 30 days prior to a primary election or 60 days prior to a general election.

The various courts that heard the Citizens United case found in favor of the FEC (agreeing that the movie could not be shown), and the case eventually arrived at the Supreme Court. It initially was contested on rather narrow statutory grounds, i.e., was a full-length movie the kind of electioneering that the act prohibited?

After hearing oral arguments the first time, the court did something rather unusual: It directed the parties to submit additional briefs and set the matter for additional oral arguments on the issue of whether the act itself was in violation of the First Amendment to the Constitution of the United States.

There were a total of 56 amicus briefs filed in connection with the case. An amicus brief means a brief filed by someone “as a friend of the court.” They are not a party to the case but want the court to consider their point of view. There were some strange bedfellows. For instance, amici filing in support of Citizens United (against censorship) included the American Civil Liberties Union, AFL-CIO, NRA and U.S. Chamber of Commerce. Those filing to support the FEC (for censorship) included Sen. John McCain, American Independent Business Alliance, League of Women Voters and Democratic National Committee. The Reporters Committee for Freedom of the Press filed a brief, wanting to be sure that, whatever else the court did, there should be no restrictions on corporations that own newspapers or television stations.

Here, in pertinent part, is what the Constitution says: “Congress shall make no law … abridging the freedom of speech, or of the press …” Perhaps like me, you believe that language to be pretty clear.

As it happens, five of the nine justices on the Supreme Court felt the same way. They ruled that Section 203 of the McCain-Feingold Act runs afoul of the above language, thus opening the door for corporations and, presumably, unions, to freely use their own money during election campaigns to support or criticize candidates for office.

In his 57-page opinion, Justice Kennedy said, “Government may not suppress political speech on the basis of the speaker’s identity. No sufficient government interest justifies limits on the speech of nonprofit or for-profit corporations.”

It is important to note what the new decision does not do. Direct contributions to candidates by corporations or unions are still barred. Likewise, they may not work in tandem with a candidate or a campaign committee for a candidate in connection with publishing their views. Limits on the amounts of money that can be donated to a candidate, and by whom, continue to be in effect. Of course, no one knows what the future may hold, should those provisions of the law be challenged.

Reactions to the opinion have been predictable. Democrats (in general) do not like it; Republicans (in general) do like it. Presumably, this is because they all anticipate that corporations will spend more to support Republicans than Democrats. However, it seems to me that it may turn out that the most significant effect will be the influence of union spending. Corporations may be reluctant to get too openly involved in election campaigns, especially if they do a substantial amount of business with the federal government. It may not be wise to antagonize one or the other of the parties. The unions, however, have no such constraints. Everyone understands that they will overwhelmingly support Democrats.

President Obama has denounced the decision. He said it “has given a green light to a new stampede of special interests in our politics.”

On the other hand, he is the man who pledged, during his campaign, that if nominated he would participate in the presidential public financing system. Once nominated, he broke that promise and opted to take private money instead. He got more money that way, and much of it came from “special interests.” He is the first presidential candidate to reject the presidential public financing system.

Time will tell whether the next several months will find us deluged with corporate-paid election ads. Someone has suggested that perhaps politicians will become like NASCAR drivers, their clothes festooned with labels and badges advertising their sponsors. Anyway, it promises to be interesting. And fun.


Howard Chapman is an attorney and resident of Fort Wayne.