The challenge to the Bipartisan Campaign Reform Act of 2002 (here, “BCRA”) was enthusiastically confronted by the Supreme Court, so much so that the Court scheduled a second oral argument (itself a rare event) almost a month before the first-Monday-of-October start of the term—an extremely rare event. The result—striking down limits on corporate and union advertising spending—will have a dramatic impact on politics for many years to come.
This decision is extraordinarily significant. It arose from an effort by an outfit calling itself Citizens United to widely distribute a “documentary” titled Hillary: The Movie, a full-length slam on Hillary Clinton offered at the time she was running for the Democratic nomination for president. However, Citizens United ran up against the Federal Election Commission, which threatened to enforce its regulations prohibiting the use of general treasury funds of a corporation or union for “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election and “[c]an be received by 50,000 or more persons in a State where a primary election...is being held within 30 days.”
Unions and corporations had long been prohibited from using their general treasury funds for campaign contributions. However, in 2002, BCRA extended that prohibition to communications, including those defined above.
The point of BCRA obviously was to avoid an end run around the rule against corporate campaign contributions. In reality, of course, most of the money given to a political candidate is used by the candidate to purchase media advertising, particularly television. The BCRA was designed to prevent corporations from sidestepping the anti-contribution rule by, in effect, paying directly for the advertising. Sponsors of the BCRA obviously believed that publishing an electronic slam against a candidate’s opponent—negative political campaigning; everybody’s favorite—will ingratiate the candidate just as much as giving the money directly; and the candidate, once elected, will have a political debt to the sponsor of the electronic slam.
So, BCRA was a concerted effort to prevent large corporations from buying elections, which is why this decision is so politically consequential. For example, this coming fall, with the BCRA dislodged, how much money will drug companies, insurance companies and HMOs spend to support candidates who will oppose health-care reform? You can bet that every senator in the “Party of No” who filibustered against it will be recommending television messages for them to sponsor: “We just can’t afford to run these spots, but we’d sure appreciate it if you would!” This time, the noble efforts of those opposed to large corporations buying government ran aground because of the First Amendment.
Citizens United and their supporters started its argument by launching multiple proposed grounds upon which they urged the Court could resolve the case short of reaching the core issue of whether BCRA violated the First Amendment, such as statutory interpretation, that the motion picture was a documentary and that Citizens United was a nonprofit organization. The Court rejected all of them, turning to the core issues.
Not surprisingly, Justice Kennedy wrote for the court. With the departure of Justice O’Connor (who openly criticized this decision, a rarity for a former justice), he now clearly is the swing vote on the Court.
Reading the beginning of Justice Kennedy’s analysis, anyone would see where it was going. After quoting the First Amendment, Justice Kennedy cited “just a few examples of restrictions that have been attempted at different stages of the speech process—all laws found to be invalid.” He goes on:
“The law before us is an outright ban, backed by criminal sanctions. [It] makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.”
Justice Kennedy went on to write the most ringing endorsement of the First Amendment that one could imagine. In the end, the statute constitutes an outright prohibition of political speech; and the First Amendment does not tolerate very many outright speech prohibitions—child pornography; yelling fire in a crowded theater; fraud; and publishing troop movements in wartime.
In truth, what chaps everyone about this result is not the strength of the First Amendment, but the fact that it fosters total corporate control of government. But that is not a free-speech problem; it is an antitrust problem.
Since the recession began, America has had added to its lexicon the term “too big to fail.” Granted, small businesses cannot manufacture automobiles or airplanes. But we are not far from the point of knowing the name, for example, of every domestic airline, every bank, every insurance company, every media outlet—and so on. As to the latter, investors create cable television channels for the sole purpose of selling them to one of the media giants, with no plans for long-term operation.
Corporations are just too big. And now that the government has allowed the unprecedented explosion in huge monopolies, the huge monopolies will now run the government, to the detriment of all of us. The corporate monopolies today have eclipsed those of the “robber barons” of the 19th century. Free speech is a good thing. Monopolies are not.
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for legal advice. Rather, it is to alert readers to legal issues warranting advice from an attorney.
This article originally ran in the March 2010 issue of AVN magazine.
