The Supreme Court did something very unusual and extremely rare on the last day of its term, June 29. It did not issue a decision in an important case involving the right to engage in political speech — a right steadily diminished by campaign “reform” laws, including the McCain-Feingold law of 2002, the modern-day Alien and Sedition Acts.
In Citizens United v. Federal Election Commission, the Court scheduled new arguments for Sept. 9 after the justices return from their summer vacations but before the new term begins on Oct. 5. Citizens United is a conservative non-profit that produced a 90-minute documentary about Hillary Clinton when she was running for president. It isn’t a flattering portrayal, but it isn’t that different in tone from the documentaries the major networks produced about conservative political figures like Ronald Reagan.
Citizens United ran afoul of § 203 of McCain-Feingold, the so-called “electioneering communications” provision that was upheld as facially constitutional in 2003 by the Court in McConnell v. FEC. Section 203 prohibits a corporation (including a nonprofit) or a labor union from using its general treasury funds (as opposed to PAC money) for a radio, television, cable TV or satellite broadcast within 30 days of a primary or 60 days of a general election that refers to a clearly identified federal candidate, even if the ad is obviously an “issue ad” such as an ad about an important legislative issue being voted on by Congress.
The Clinton movie was shown in movie theaters and circulated in DVD format, but the FEC claimed the promotional ads would have violated the electioneering communications provision, and Citizens United would have been subject to the disclaimer and disclosure requirements of federal campaign law. Citizens United claimed these restrictions interfered with its ability to engage in political speech.
Since Chief Justice John Roberts and Justice Samuel Alito have joined the Court, it has been slowly chipping away at the McCain-Feingold restrictions. In 2007, in a 5-4 opinion authored by the chief justice, the Court held that while § 203 was found facially constitutional in McConnell, it was unconstitutional as applied to the specific ads on judicial filibustering that Wisconsin Right to Life, a non-profit advocacy organization, wanted to run in Wisconsin. The electioneering communications provision violated the free speech rights of WRTL when applied to issue advocacy.
In 2008, the Court damaged McCain-Feingold again in another 5-4 opinion authored by Justice Alito. It struck down the “Millionaires Amendment,” which tripled the contribution limit of candidates running against a self-financed candidate who spent more than $350,000 of his own funds. This violated the First Amendment by making a candidate choose between unfettered political speech and discriminatory fundraising limitations.
Notably, the decision overruled the four liberal justices who justified the amendment on the basis of leveling the electoral playing field, an argument that could be used to justify just about any restriction on political activity. The key to both of these decisions is the recognition (denied by the campaign “reform” community) that controlling money used to pay for political speech is the equivalent of controlling political speech directly, since money is needed to make one’s voice heard.
The June 29 order in Citizens United requires the parties to brief the Court on whether it should overrule its prior decision in McConnell upholding the facial validity of § 203, or whether it should also overrule its 1990 decision in Austin v. Michigan Chamber of Commerce. In Austin, the Court upheld restrictions on the ability of corporations to make independent expenditures in political campaigns. Justice Scalia wrote a scathing dissent:
"Attention, all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: ___." In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the "fairness" of political debate.
Justice Kennedy also dissented, chiding the majority for adopting a rule “repugnant to the First Amendment” that stifled “the voices of some of the most respected groups in public life on subjects central to the integrity of our democratic system.” Today Kennedy represents the all important 5th vote and the potential swing vote in the Citizens United case.
We will see if the views of Justice Kennedy and Scalia from the Austin case will finally prevail in September. The Supreme Court has a chance to throw out repugnant restrictions on independent political activity and the most obnoxious provision of the McCain-Feingold law.
Hopefully, the Court will restore our full First Amendment right to engage in unfettered political speech, a right cavalierly stolen by two senators who apparently lack any concern over government censorship.