More on Citizens United v. FEC

A.P. has a few more details that help explain why opponents of legal restrictions on political speech are optimistic, following today's second round of oral arguments in Citizens United v. FEC, that the Supreme Court will declare the Bipartisan Campaign Reform Act's ban on "electioneering communications" unconstitutional and overturn a 1990 decision that upheld limits on independent campaign expenditures by corporations (including nonprofit advocacy groups). Chief Justice John Roberts, one of the two justices who will have to side with Anthony Kennedy, Antonin Scalia, and Clarence Thomas to reject the FEC's censorship of Hillary: The Movie, declared, "We don't trust our First Amendment rights to FEC bureaucrats." Meanwhile, Samuel Alito, who could provide the fifth vote against BCRA's speech restrictions, noted that most states allow unlimited corporate spending on political speech. "Have they all been overwhelmed by corruption?" he asked Solicitor General Elena Kagan. (They haven't.)

The New York Times reports that Kagan was backpedaling as fast as she could. She repudiated Deputy Solicitor General Malcolm Stewart's claim last March that the Constitution allows Congress to ban books published by corporations, and she allowed that maybe advocacy organizations like Citizens United should not be covered by the electioneering communications ban. Supporters of "campaign finance reform" have long argued that nonprofits must be covered because otherwise business interests can use them as conduits for their views.

Politico says Chief Justice Roberts highlighted the government's shifting rationales for the corporate speech restrictions. When the Court upheld BCRA's restrictions in 2003, it relied on the rationale endorsed by its 1990 ruling in Austin v. Michigan Chamber of Congress: the need to control the "corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form." But in its supplemental briefs (filed after the Court ordered a second round of arguments to address the continued viability of Austin), the government instead emphasized the need to prevent the appearance of corruption and the need to protect shareholders from supporting speech with which they disagree. Today Roberts told Kagan she was asking the Court to uphold limits on corporate speech "on the basis of...two compelling interests we've never recognized in this context." According to Politico, Roberts "dismissed the shareholder protection argument as an 'extraordinarily paternalistic' example of the government playing 'Big Brother,' while saying of the corruption argument, 'I just don't think it holds up.'"

Institute for Justice attorney Steve Simpson, whose organization sided with Citizens United against the FEC, concludes: "Based on today's argument, free speech advocates can be optimistic for a broad vindication of First Amendment rights. Several justices recognized that a piecemeal approach to free speech is insufficient to protect vital constitutional rights."

The full transcript of today's arguments should be available soon here and here, where you can also find all the relevant briefs.

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  • ||

    What sort of questions have the 4 liberal justices that are not expected to repeal the law been asking? I'm curious what their concerns are.

  • Hobo Chan Ba||

    Look, I'm no fan of corporate personhood, nor of the idea that money = speech. However, the First Amendment says nothing about an "individual" right - thus one can assume the freedom of speech is absolute regardless of by an individual, organization, labor union or corporation.

  • ||

    She repudiated Deputy Solicitor General Malcolm Stewart's claim last March that the Constitution allows Congress to ban books published by corporations,

    Interesting. It seems logical if corporations have no First Amendment rights, no?

  • Brian Sorgatz||

    Ditto Nick.

  • Joe M||

    Exactly, RC. You can't have it both ways, at least, not without engaging in some cognitive dissonance. If she's backing away from that, she's refuting her own case.

  • WWJGD||

    I do remember Ginsburg asking Olson (the first question asked by any justice) about the restrictions placed on foreign corporations and the foreign countries that may control them and whether there was a compelling interest there.

  • ||

    We don't restrict foreign nationals from speaking freely here, do we? Maybe she's just retarded.

  • @||

    We're reminded that, as two branches of government toil day and night to steal our rights, the third may occasionally act as an avenger, giving back that which never should have been taken.

  • Tricky Prickears||

    I'm all for individual rights, but I just don't see a corporation as an "individual". It's a collective.I read a comment the other day here on H&R that society has no rights, only individuals. Why would a corporation or a labor union be any different?

    Furthermore, a businesses prime concern is to increase profits, yes? All or most management decisions should be based on this. So any management decision to support any candidate or political party would be for the sole purpose of increasing profits.

    And what other rights would corporations have other than free speech? Perhaps the right to vote?

  • WWJGD||

    "about the *restrictions"

    *possibility of

    That may need to be added in there. I think. I'm a little fuzzy on it, but it's on CSPAN's site and it's near the beginning.

  • MNG||

    Won't somebody think of the poor, defenseless corporations and rich people!

  • ||

    Speech is traditionally viewed as an individual and a collective right. What is the freedom of the press? What does the freedom of association mean if the group can't speak? You want to stifle "corporate" speech but allow every other group to speak? Who picks and chooses the groups that are allowed to have a speech right?

    MNG,

    That's a ridiculous statement. Why not just say the haves shouldn't have any rights and the have nots should? In fact, why not kill off all the rich people and people who work for corporations?

  • ||

    "Interesting. It seems logical if corporations have no First Amendment rights, no?"

    Yes it does. But no one wants to be seen banning books. So, she will come up with some bullshit distinction between books and movies and "campaign activities". You watch.

  • ed||

    society has no rights, only individuals. Why would a corporation or a labor union be any different?

    Because they consist of individuals?

  • ||

    Won't somebody think of the poor, defenseless corporations and rich people!



    Not a fan of the ACLU, huh, MNG?

  • ||

    I changed my mind. Let's pursue this line of thinking. Government entities by the same token should have no speech rights at all. No more speeches. No more broadcasts. No more publications.

  • ||

    So is "society" all of us by default? People certainly have different expectations of what society is or should be. I think everyone should be open-carrying everwhere for a betterment of civil society. Bloomberg in his fucktardery disagrees and instead bans transfats as a detriment to society. We are operating on different planes of what society is or should be, quite clearly.

  • ||

    I'm all for individual rights, but I just don't see a corporation as an "individual".

    So you think that a law prohibiting a corporation from publishing any books would not violate the First Amendment?

  • Joe M||

    Speech is traditionally viewed as an individual and a collective right.

    Be careful there. I don't think that's 100% correct. Corporations are voluntary associations of individuals, and even if there is a group protesting, or a newpaper printing, it is still an individual speaking.

  • tp||

    ed

    Doesn't society consist of individuals also?

  • Joe M||

    When I think of collective speech, I think of the Borg.

  • ||

    Many authors are incorporated. Some books are written by more than one person. It's OK for them to be censored?

  • MattXIV||

    I'm all for individual rights, but I just don't see a corporation as an "individual". It's a collective.I read a comment the other day here on H&R that society has no rights, only individuals. Why would a corporation or a labor union be any different?



    They're both just groups of individuals who have agreed to organize in a particular way and appoint representatives for them, and in this regard aren't disimilar from political parties or advocacy organizations. Ultimately, whatever is being said on behalf of the group is being said by some actual person, so you can't restrict the speech of the group without also restricting individual speech.

  • tp||

    Perhaps I'm looking at this the wrong way. I speak for my business. When I shmooze a member of a local planning board for a zoning varience, it's not really me speaking, it's my business speaking.

  • ||

    Joe M,

    It absolutely can be a collective right in the sense that groups of individuals can speak with one voice. The freedom of the press, of course, is generally viewed as a right held by groups and businesses.

    SugarFree,

    I was thinking about that, too. Writers, actors, athletes, musical performers, and other celebrities often perform their business activities under some sort of loan-out business, usually of the limited liability variety. They need to shut the hell up, too, apparently.

  • Travis..||

    I'm a star bellied sneetch. I don't care what they say...

  • ||

    Won't somebody think of the poor, defenseless corporations and rich people!

    MNG, I know you've read far more John Stuart Mill than I have, but you have a strange misconception of what a corporation usually is. The truly hideous corporations out there own TV networks and newspapers, anyway, so they aren't affected by BCFR.

  • Fluffy||

    Apparently the addition of Sotomayor to the court means that civil asset forfeiture law may be about to go down, because the wise Latina does not like those laws.

    If campaign finance reform and civil asset forfeiture laws go down in the same court season, I may have to take a break on calling people cunts for a while.

  • Tricky Prickears||

    Not only that, but if I apply for 1,000 EIN (Employer Identification Number) numbers from the IRS, I'll own 1,000 businesses, which means I'll have 1,000 voices.

  • Jordan||

    Not only that, but if I apply for 1,000 EIN (Employer Identification Number) numbers from the IRS, I'll own 1,000 businesses, which means I'll have 1,000 voices.



    So? I can publish 1,000 pamphlets under 1,000 pseudonyms.

  • Tricky Prickears||

    So? I can publish 1,000 pamphlets under 1,000 pseudonyms.

    Only if you want to sue yourself for copyright infringement.

  • Tricky Prickears||

    I can open 1,000 checking accounts each under a different name and different business entity, place money in each one, and donate to a political campaign, 1,000 times (the limit), under 1,000 different business names.

    Can you open 1,000 checking accounts under 1,000 different pseudonyms? Can you open one checking account with a name that doesn't match a SS number or EIN? Ever hear of The Patriot Act?

    An incorporated business, in the eyes of the federal government, is its own entity with its own finances. I can even borrow money under each business entity.

  • Tricky Prickears||

    How about 1,000 shell corporations, instead of looking for tax havens, donating to political campaigns.

  • ||

    Tricky, if you're trying to make a point, its eluding me.

  • MattXIV||

    How about 1,000 shell corporations, instead of looking for tax havens, donating to political campaigns.



    That's exactly what PACs are. Quite legal as is and actually created by campaign finance law.

    Also, the matter before the court is whether people acting on behalf of a corporation can engage in political speech directly, not whether corporations can transfer money to a 3rd party for the purpose of doing so, which should have at least as strong of protections as funding transfers.

  • Tricky Prickears||

    There's a limit on the amount an individual can make to a political campaign, no? If businesses are allowed to make donations there will likely be a limit also? If I set up 1,000 businesses, I can send 1,000 different checks to a single campaign. The only two people who would know is me and the politician. That will be 1,000 times the limit. Sure that would be illegal,but who's going to catch it? The FEC? Are they equipped to do so? It would ultimately fall back on the IRS. So, we're at least looking at a whole new set of regulations. And a huge expansion of government.

  • Tricky Prickears||

    PACs are non-profit and fall under a different set of rules.

  • Tricky Prickears||

    All I really need to start a business legally is an EIN or TIN. That's it. What is needed to start a PAC?

  • MattXIV||

    TP,

    Why would you need a for profit if the point was to get around individual contribution limits by funneling money through them?

    It is quite possible under existing law to start up as many PACs as you please and contribute the legal maximum to each and every one of them and starting a PAC is easier than filling out a 1040. http://www.fec.gov/info/toolkit.shtml#nonconnected

  • Libertarian||

    I know it's a cliche but..............what part of "Congress shall make no law..." is so hard to understand?

  • Tricky Prickears||

    ...starting a PAC is easier than filling out a 1040.

    Sure. But what is involved in getting approved? I'm sure there's some sort of approval and back checking and monitoring of all PACs. The same way the IRS monitors businesses for tax puposes. How they are being funded, how much they are spending, who're the principals, etc.

    Individuals need only a name and a matching SS number. Individuals do not need to go through the FEC.

    Would businesses need to go through the FEC? If not, no one except the IRS will really know where the money is coming from. And if businesses did need to go through the FEC, wouldn't that place a huge burden on the FEC?

    I mean, if we do give businesses unlimited spending ability, shouldn't we at least have the right to know exactly where it's coming from? That's why PACs have to register with the FEC, isn't it?

    Has anybody really thought this through. I mean just the administrative demands this will place on the regulatory board will be enormous.

    Is the court really prepared to allow businesses to make unlimited contributions to campaigns, or just allow them to donate directly with limits?

  • anonymous||

    "I'm all for individual rights, but I just don't see a corporation as an "individual". It's a collective.I read a comment the other day here on H&R that society has no rights, only individuals. Why would a corporation or a labor union be any different?"

    Well, can't speak as to a union, but having legal rights generally afforded only to individuals is one feature of a corporation. I don't think the Supreme Court is ready to toss out that venerable aspect of the law, so that philosophical argument isn't worth much in terms of guessing the actual outcome.

    Besides, speech happened. Corporations exist on paper, they cannot physically create or distribute media or have opinions or speak them. Strip away the legal fiction of corporate personhood, and you just have a group of people who are expressing themselves. As individuals, surely they have rights.

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  • Fluffy||

    Has anybody really thought this through. I mean just the administrative demands this will place on the regulatory board will be enormous.

    Who gives a shit?

    The individual contribution limits violate the Constitution too, and those will go soon enough.

    Why in hell would I care about the convenience of the FEC in enforcing an unconstitutional law?

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