INSTITUTE FOR JUSTICE: Arlington, Va.””Today, the U.S. Supreme Court announced a landmark victory for free speech, making clear in Citizens United v. Federal Election Commission that under the First Amendment the government cannot stifle dissent by restricting the right of corporations to spend money on independent political speech.
Justice Kennedy, writing for the Court, emphasized that the government’s ban on corporate speech was censorship, pure and simple: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.” He added, “The First Amendment confirms the freedom to think for ourselves.”
“This is the most significant First Amendment decision from the Supreme Court in more than a decade,” said Steve Simpson, an Institute for Justice senior attorney who authored the Institute’s amicus brief in Citizens United. “The Court has finally struck down blatant censorship that masquerades as campaign finance reform. Slowly but surely, the Court is prying Americans’ free speech rights away from the hands of government bureaucrats. The words of the First Amendment”””˜Congress shall make no law . . . abridging the freedom of speech'””demand nothing less.”
The Court overturned a case that had severely limited corporate political speech: Austin v. Michigan Chamber of Commerce, which said that governments could ban corporations from independently speaking out about political candidates. It also overturned parts of McConnell v. FEC, which upheld a ban on “electioneering communications”””corporate- or union-funded broadcast ads that merely mention a candidate shortly before an election.
The Court did so because it recognized. . . that speech bans like these inevitably embolden politicians and self-styled “reformers” to call for even more censorship, such as banning corporate-funded films about candidates, like the nonprofit Citizens United Hillary: The Movie, or even corporate-funded books if they attack or support a candidate.
In today’s opinion, the Court ruled that everyone, including corporations, has the right to speak out about issues and candidates. The government may not restrict the marketplace of ideas: “The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” In other words, the First Amendment rejects government paternalism, instead “entrusting the people to judge what is true and what is false.”
“Politicians hate criticism and so they sought to heavily regulate””if not ban””the most effective political speech against them,” said Chip Mellor, the president and general counsel at the Institute for Justice. “Governments have aimed the campaign finance laws at corporations precisely because they can speak effectively. By overturning Austin and McConnell, the Court has taken a critical first step to restoring robust constitutional protections for free speech.”
In today’s decision, although the Court upheld the disclosure provisions that applied to Citizens United, it cited the amicus brief of the Institute for Justice in noting that the “threats, harassments, or reprisals” that disclosure of donors’ identities can generate are a “cause of concern.” Thus, the Court left open the possibility that other groups engaged in debate on controversial issues could successfully challenge the disclosure provisions.
So-Called “Fair Elections Now Act”
Anticipating today’s ruling, those advocating campaign finance restrictions have already begun promoting new regulations to “deal with” the freeing of more Americans to speak about politics. One proposal, the “Fair Elections Now Act” in Congress, would publicly fund the campaigns of those who run for federal office, while imposing a host of complicated regulations on candidates and their supporters. (For a 72-second video on FENA, visit: www.ij.org/FENAvideo.)
“Today, the Court made clear that under the First Amendment, free speech is not a problem to be solved with government bans and red-tape; it is a fundamental right enjoyed by all Americans,” said Simpson. “This is a message that congressional proponents of the so-called Fair Elections Now Act””yet another proposal by politicians to stifle speech that threatens their re-election””need to hear.”
Moreover, as IJ Senior Attorney Bert Gall noted, there is nothing to fear from corporate political speech: “Companies do not speak with one voice; instead, they represent a wide variety of viewpoints from across the ideological spectrum. So while Wal-Mart may speak out in favor of politicians who support health care reform, other retailers such as Whole Foods may do the opposite. And if Chrysler runs ads on behalf of candidates who won it favorable bankruptcy treatment, institutional investors whose bonds were rendered worthless can now criticize those same politicians. The result is a free-wheeling and uninhibited debate, which is just what the First Amendment is meant to provide.”
The Next Big Free Speech Cases
Two other cases will give the courts the opportunity to take additional steps toward freeing speech from burdensome and unnecessary campaign finance laws. SpeechNow.org v. FEC, which will be argued in front of the entire D.C. Circuit Court of Appeals on January 27, 2010, involves a challenge to a federal law that forces people to sacrifice the First Amendment right to associate in order to exercise the First Amendment right to speak. SpeechNow.org is a group of citizens who wants to band together, pool resources and run ads favoring some candidates and opposing others. But while each person on his own could spend as much as he wants, the law says no one can contribute more than $5,000 to the joint effort. Along with the Center for Competitive Politics, IJ represents SpeechNow.org.
In Sampson v. Buescher, a group of neighbors who were sued for speaking out against the annexation of their neighborhood into a nearby town have challenged Colorado’s burdensome campaign finance regulations of ballot issue advocacy. Under Colorado law, groups that spend as little as $200 speaking for or against a ballot issue must register with the state and disclose the identities, addresses and often employers of anyone who contributes more than $20 to their cause. IJ represents the neighbors in the case, which is currently before the 10th Circuit Court of Appeals.
The Institute for Justice defends First Amendment rights and challenges campaign finance laws nationwide. In May 2009, the Institute secured a federal court ruling striking down Florida’s electioneering communications law, and IJ previously won a ruling in the Washington Supreme Court that stopped an attempt to regulate media commentary as “in-kind” political contributions. IJ is currently challenging laws in Colorado that suppress speech about ballot issues by grassroots groups and nonprofit organizations, as well as Arizona’s “Clean Elections” law for funding political campaigns with taxpayer dollars.
For more information, visit www.ij.org/FirstAmendment.
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Steve Buckstein is founder and senior policy analyst at Cascade Policy Institute, Oregon’s free market public policy research center.