As I stated in the first post in this series, I am a staunch advocate of free speech rights, bordering on but not quite achieving an absolutist position. Section III of Kennedy's opinion for the majority opens by quoting a section of the above 1st Amendment.
The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been attempted at different stages of the speech process-all laws found to be invalid:
It goes on to list several cases. The next paragraph begins with loaded word use.
The law before us is an outright ban, backed by criminal sanctions. Section 441b 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:
Is it an "outright ban?" Or is it a regulation of corporate activity (left out here is also the important regulation of where the money used for these activities is coming from)? I'll state again that the movie was made, the movie was distributed, the speech was made and heard. You can watch it today if you wish. You could have watched it the day before this ruling just as easily. "Outright ban" is highly inaccurate regardless of what one thinks of government regulation of corporate activity, the personhood of corporations or the relationship between money and speech.
What follows is a list of hypothetical's presented as a chain of horrors to bolster their case that this is a bad, bad thing.
Next they present a hole in their argument.
Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. See McConnell , 540 U. S., at 330-333 (opinion of KENNEDY , J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b's expenditure ban, §441b(b)(2), does not allow corporations to speak.
Section 441b provides a method for corporations to create a PAC for the specific purpose of corporate political speech. These PAC's are funded through voluntary contributions from employees and stockholders of the corporation (and their families) rather than from the general treasury of the corporation. In other words, the law provides an avenue for corporate political speech while pursuing its narrow goal of regulating funding from a source that is made up of money potentially belonging to people that do not agree with that speech or foreign nationals. Corporate speech is allowed not banned.
Yet this is not good enough. This question of "association" mentioned above is an important one and the assertion that the corporate PAC is a completely separate and distinct entity from the corporation itself and therefore does not provide an avenue for "corporate speech" is one we'll delve into later.
For now, consider that a corporate PAC allowing corporate involvement in the political arena is not a method for a corporation to get involved in politics... so say the 4 horsemen and Mr. Kennedy. Let's move on to their next point.
Even if a PAC could somehow allow a corporation to speak-and it does not-the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years, and file an organization statement and report changes to this information within 10 days. See id. , at 330-332 (quoting MCFL , 479 U. S., at 253-254).
And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur:
" 'These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate's authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation.' " 540 U. S., at 331-332 (quoting MCFL , supra , at 253-254).
So what? Everyone candidate, every PAC, every campaign committee, every political party committee must follow FEC regulations and reporting. Every corporation must follow a wide variety of regulations and reporting requirements for their primary everyday business. Unless the Court is suggesting that all FEC regulation and reporting requirements be struck down then the fact is that a corporation spending money out of their general treasury would have to comply with the same FEC regulation and reporting requirements.
Oh, and by the way, they've already stated in this case that the disclaimer and disclosure requirements are perfectly valid and constitutional (all but Justice Thomas that is).
This is nothing more than obfuscation. An attempt to make something they have already ruled right, reasonable and legal sound onerous, restrictive and tantamount to impeding free speech. Nowhere do they acknowledge that a PAC's reporting requirements are substantially no different than the corporations would be directly. If you think about it for even a moment it is easy to realize that a corporation would probably have even greater reporting difficulties as they would have to clearly differentiate money spent on political activity from money spent on economic activity while the PAC has only one fund dedicated to one purpose. So let's strike all that fluff and clutter and move on.
PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs.
Then again... it might not. Here is another case of them asserting something without a shred of evidence to support it. Simply asserting something does not make it true. Consider that a corporation might choose to spend its time and energy pursing it primary economic purposes and choose not to delve into a political arena that is an incredibly expensive place in which to engage. But no, it must be the onerous requirements they have already said are perfectly reasonable. They then cite various statistics that prove only that there are lots of corporations and there are fewer corporate PACs.
Then comes this whopper...
PACs, furthermore, must exist before they can speak.
How does one reply to something as asinine as that? [sigh] Ok, a few deep breaths and let's try this. People must exist before they can speak. Corporations must exist before they can speak. Supreme Court Justices must exist before they can speak. Should I go on?
Here is what they are trying to say with that particularly piece of stupidity.
Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.
We've already blasted the "onerous restrictions" argument to pieces. As to the rest, even if we accept that corporations have views on candidates or that these views have any business in the political process of actual flesh and blood people (an issue not yet addressed and therefore not established) the fact of the matter is that any corporate lawyer worth a smidgeon of his pay can fill out and file the paperwork for a PAC in an afternoon. Similarly, elections happen on a well known schedule. Candidates are generally known from half a year to two years in advance for virtually any and all offices. This argument is specious.
Let's separate out one important point here... issues. The law under question is in regard to corporate spending on electoral campaigns. It is not in regard to issue campaigns in which corporations are, rightly, allowed to participate. Including the word "issues" here reeks of an attempt to make the invalidity of the actual argument sound valid by implying an unrelated issue is involved. It isn't.
Consider a campaign to outlaw the tobacco industry. We might support that movement for a variety of reasons but it would be a travesty of justice to claim that the tobacco companies ought not be allowed to defend themselves.
Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on political communication during a campaign," that statute "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Buckley v. Valeo , 424 U. S. 1, 19 (1976) (per curiam) . Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. See McConnell , supra , at 251 (opinion of SCALIA , J.) (Government could repress speech by "attacking all levels of the production and dissemination of ideas," for "effective public communication requires the speaker to make use of the services of others"). If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.
Again they assert the "ban on speech" but as I believe I have shown above this is categorically false.
They then go back to Buckley, a key case in the history of campaign finance regulation. It is hard to see how exactly this applies. That quote deals with a restriction on how much a person can spend in a campaign and not whether corporations are persons that can spend in the first place. More fluff in other words.
From this non-applicable statement we enter a chain of horrors. Let me paraphrase, if we allow this limited restriction we'll be allowing the government unlimited restrictions. If this law that doesn't apply to individuals applied to individuals then the government could restrict the individuals that this law expressly does not apply to! The last line is the only pertinent one.
Its purpose and effect are to silence entities whose voices the Government deems to be suspect.
Except for the word "silence" (see discussion of corporate PACs above) this is correct. We the people, through our government, have deemed the idea of corporations involving themselves in our electoral process to be suspect and have therefore regulated that participation. Here is one of the fundamental questions of this decision. Is that valid?
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley , supra , at 14-15 ("In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential"). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.
"... for it is the means to hold officials accountable to the people."
Accountable to the people? Or accountable to the corporations?
"In a republic where the people are sovereign...."
Where the people are sovereign. Are we done? Can we go home now?
... the ability of the citizenry to make informed choices... The right of citizens to inquire, to hear, to speak...."
This argument put forward by the majority is all about the people and I couldn't possibly agree more with it. Ours is a government of We the People. We the People are sovereign.
Now... to be fair... there are some serious issues to consider here and we'll be getting to those. But I wanted to use their own words to establish without doubt that it is We the People who are sovereign and it is We the People whose speech rights are so essential and so fundamental as to be unassailable.
For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." WRTL, 551 U. S., at 464 (opinion of ROBERTS , C. J.). While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster , 502 U. S., at 124 ( KENNEDY , J., concurring in judgment), the quoted language from WRTL provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here.
Again, I couldn't agree more. We must be incredibly careful in allowing any restriction on speech at all. It's why it was important enough for me to read through the 193 pages of this decision to see if regulation of corporate speech was too dangerous in its implications no matter how desirable it might be.
Note the used of the terms "strict scrutiny," "compelling interest" and "narrowly tailored." These are standards developed by the court which they use to deal with issues such as this. In essence, any restriction of a fundamental right such as free speech must be looked at with the strictest scrutiny by the court. If the government can show a compelling interest for the restriction, meaning some other equally as important and fundamental purpose of government is at stake, and the regulation or legislation is narrowly tailored so as to achieve that compelling interest while restricting that fundamental right (speech in this case) as little as possible then and only then will the court find the law constitutional. This is what I was talking about in the opening to part I when I said cases such as these often come down to the balancing of two or more fundamental rights or interests against each other. It's easy to say speech should never be restricted. It's easy to say money should not be a determinate factor in politics. It is much, much tougher to craft legislation that balances those two things against each other. It is easy to say corporations aren't people and have no free speech rights but the example of eliminating the tobacco industry that I used above shows that is no so cut and dry either. Here is a key piece of their case:
Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc. , 529 U. S. 803, 813 (2000) (striking down content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti , 435 U. S. 765, 784 (1978) . As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.
How ironic is it to read the radical right using a pornography case to advance their position here. That aside, the mistrust of governmental power was indeed a driving force in the creation of the Bill of Rights. Consider for a moment that it is the mistrust of corporate power that is the driving force behind the regulation of corporate involvement in the electoral system. It is the differentiation of speakers that becomes central to their case. They will expand on that point.
By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice.
Another balancing point to consider, by granting corporations with wealth available to them far beyond the means of all but a handful of individual's the court disadvantages the rest of us in our ability to "strive to establish worth, standing, and respect for [our] voice."
The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.
Here, as above, where they talk about our right as individuals to determine for our selves, our right as listeners in other words, is the best case they have made so far. If I am doing my duty as a citizen to be fully informed on the issues before making a vote then I may call say, a health insurance company, and ask their view on health care legislation. Similarly I may call my Dr, the AMA, the American Cancer Society, etc. If I call and they say to me "We are not allowed to tell you our views," then I am restricted in my right to become fully informed on the issues of the day. They had me for a few minutes with that one.
Justice Stevens however tears it apart later by pointing out that corporations are not restricted in their right to create issue ads or to express their views in a myriad of forms such as press releases, trade magazines, CEO's on talk shows or in op-eds, etc. What they are not allowed to do is run a TV commercial 30 days prior to an election and say "Don't vote for Hillary Clinton." While I can imagine calling a health insurance company to understand their views on pending health insurance reform I cannot conceive of a reason in the world why I or anyone else would call and ask any corporation whether they intend to vote for Hillary Clinton or not and whether they think I should do the same. This will come up again. Lastly...
The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g., Bethel School Dist. No. 403 v. Fraser , 478 U. S. 675, 683 (1986) (protecting the "function of public school education"); Jones v. North Carolina Prisoners' Labor Union, Inc. , 433 U. S. 119, 129 (1977) (furthering "the legitimate penological objectives of the corrections system" (internal quotation marks omitted)); Parker v. Levy , 417 U. S. 733, 759 (1974) (ensuring "the capacity of the Government to discharge its [military] responsibilities" (internal quotation marks omitted)); Civil Service Comm'n v. Letter Carriers , 413 U. S. 548, 557 (1973) ("[F]ederal service should depend upon meritorious performance rather than political service").
First, this means that free speech rights are not absolute. A narrow class of restrictions that disadvantage certain persons have been allowed. Schools, prisons, the military, and the postal service (and by extensive other government employees). So much for the idea that we can't differentiate between speakers because it is the rights of students, prisoners, military personnel and government employees as classes of individuals that are being restricted. Regardless of the reasonableness of the argument in favor of these restrictions it wholly undermines the 5-man majority's case that we cannot differentiate between speakers. We can and we do. However, we should indeed apply strict scrutiny to any such differentiation.
Their conclusion based on this line of reasoning?
The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite.
Depends how narrowly you define a "governmental function." Regardless, It most assuredly will interfere with We the People's ability to maintain a functioning representative democracy.
Let's look at it from another angle, if corporations are freed to buy the government away from We the People and that government then functions to serve the interests of corporations rather than We the People would this be classified as interfering with the function of a government of We the People? It is not hard to see this outcome as something far less than a more perfect union.
They conclude this section by saying:
We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.
... except students, our military, prisoners, and government employees.
Part 5 tomorrow... in which we witness 5 Supreme Court Justices spin like Whirling Dervishes in an attempt to justify this nonsense and show us the depth of their hypocrisy. |
