Citizens United v. FEC statement from Center for Competitive Politics Chairman Bradley A. Smith and other comments from campaign finance experts during CCP’s post-Citizens United v. FEC conference call today
Smith’s opening remarks:
Bradley A. Smith
Chairman, Center for Competitive Politics
Former Chairman, Federal Election Commission
To frame [the case] one of the things that’s important to remember as we look at this case and consider what it means is to think about what it would have meant if the case went in another direction. It is largely forgotten that the position of the government was, right up until this morning, that it had the power under the constitution to ban books and movies if they were published by a corporation or if the writer of a book was hired by a union to write it or however a corporation or union might be involved in financing a publication or writing a publication or in the distribution of a book or movie. The government ensured the courts that it really didn’t intend to that, at least not very often, but it was their opinion that was the power it has under the constitution. It is very important not to lose sight of that amidst the hysteria that we hear very shortly coming out of those who are opposed to this decision.
The second point I want to make is that this case will lead to more spending, I think, in political elections. And I think most of us here on this call, all of us here on this call, think that’s a good thing and we’re willing to take chances that our side will prevail. You know that from a partisan standpoint we’re not at all of the same view or on same side but I think all of us can agree that speech is important and that this will be good in allowing both unions and corporations to speak. Unions and corporations often have a particular point of view. Ask the unions or ask corporations about how candidates and issues will affect them and thus affect the neighbor where they work and operate and I think it’s important that those voices be heard.
But having said that I want to point out that this decision is not so radical as it has frequently been painted to be. We hear over and over that this is a 100 year old law when in fact the law prohibiting corporate and union expenditures was passed September, a war measure, in WWII and not made permanent until 1947 as a part of the Taft-Hartley Act. So that’s 60 years, still some time but it’s not 100 years . And we should remember that after it was passed, it was never really enforced. There were a couple of cases that went to the Supreme Court, involving the pipefitters union, the AFL…the auto workers union, but the Court always dodged the issue of whether in fact the law was Constitutional. The reality was that people were not being prosecuted for independent expenditures during that time frame. So the real precedent the court has overturned today is Austin v. Michigan Chamber of Commerce, that is a 20 year precedent, not 100, 20 years, and itself stands out as a sore thrum in campaign finance jurisprudence of the Court, allowing much more regulation and for somewhat different reasons than the court in other decisions.
The third point is that this decision does not allow corporate or union contributions to candidates. What it allows is independent spending by these corporations and unions which is done separately and independently from the candidates. I’ve heard several reports about how this decision allows corporate or union contributions directly to candidates. That is simply not correct and the distinction is I think an important one.
Also I would note that the regime that is created by this decision today is already the regime that is in effect in 28 states and comprise 60% of the United States population. In other words, the majority of the United States people already conduct their state and local elections under the exact same regimes and these states – these state governments were supposedly going to be even easier for unions and corporations to take over the state, so to speak – are not dominated by corporations and unions making independent expenditures These include state like Utah, Oregon, Virginia, some of the fastest growing and best-governed states in the country.
Finally, I would add that at the federal level there is no reason to believe we’re going to see the outpouring that some of the more histrionic horror stories we say. Again, we expect to see more speech, we think that’s a good thing, but the idea that corporations are going to devote 10 percent of their profits or something like that to independent political expenditures is just absurd. If we go back and look at what was done in terms of soft money expenditures prior to McCain-Feingold, the amounts were nowhere near those amounts that are being frequently tossed around by members of the reform community. So both at the federal level and the state level, we have some experience with what this regime will looks like and it has actually worked quite well.
Joseph E. Sandler
Sandler, Reiff & Young P.C.
Former General Counsel of the Democratic National Committee
[Even after McCain-Feingold] corporations and unions could spend money independently on every other form of media up to election day and in short order, the Supreme Court… opened up the possibility of corporations and unions making independent expenditures that did reference candidates in broadcast ads up to election day where there was a genuine legislative issue to be addressed…that was in Wisconsin Right to Life v. FEC. In a lot of ways this decision is more marginal than cataclysmic in terms of what it will do to the campaign finance system.
I do think you’ll see more sharp-edged, candidate specific advertising closer to the election on the air and that could make it more difficult than it already is for Members [of Congress] to take tough votes in an election year and of course we’re looking at that situation in 2010.
James Bopp, Jr.
Bopp, Coleson & Bostrom
General Counsel, James Madison Center for Free Speech
argued Citizens United in the lower federal courts
The Federal Election Commission has correctly viewed for decades now their authority under federal election law to be so extensive as to include banning books… when I say banning books, their position is that if there is one sentence in a 600 page book saying vote for or against a candidate, their position has been that that book can be banned if it was paid for by a union or corporation. It is that stunning breath that came to light the light of day in the argument that I think led to the Court’s reconsideration of these precedents.
There is no counter balancing interest. As many of you know, the government gave up on the corporate corruption idea which the Court said was very unconvincing in the first place and went to independent speech can lead to quid pro quo corruption which the Court, maybe 6 or 8 times, said that independent speech does not give rise to a threat of corruption, so there was no justifiable interest to support the corporate ban [on independent expenditures].
Hans A. von Spakovsky
Senior Legal Fellow at The Heritage Foundation’s Center for Legal and Judicial Studies
Former member of the Federal Election Commission
I think this is a terrific ruling because it restores parts of the First Amendment that were stolen by a very bad provision of federal law that set up a government agency, the FEC, as a censor. This provision when it was passed which restricted and banned political speech, I think was the worst damage to the First Amendment since the Alien and Sedition Acts were passed in 1798. Today the Supreme Court has restored those First Amendment rights and said that the government can’t distinguish between different speakers and say that some will be allowed to speak and others won’t.
The reformers…constantly lose sight of a basic premise: that the answer to speech they don’t like is not to restrict that speech, but to answer it with more speech. That’s what the Court is saying today in this case.
I think it’s a very good decision; it’s one that will help the political process we have particularly because the voices of unions and the voices of corporations, given the economic circumstances we are in, are very important.
The FEC opened up a case and spent a lot of time investigating [George Soros] just because of his book…the idea that a government agency would be investigating someone because they write a political book is, to me, just a fundamental violation of the most fundamental principles we have as a country.
Joel Gora
Professor of Law, Brooklyn Law School
longtime ACLU attorney
For those of us who have argued all the way back before Buckley v. Valeo that the core purpose of the First Amendment is to protect political speech so that the people can have as much information as possible and govern themselves and to the extent that campaign finance laws prevent that, then they are violations of the First Amendment…we are really vindicated.
If you look at it from the overall view of the role of the First Amendment, this is a decision that gets back to basics and back to first principles. The first principle of the First Amendment that nearly everyone agrees on is that its purpose is to protect political speech and enhance democracy, because the more speech you have, the better democracy you have.
It’s a great decision to strike down a system of prior restraints. The Court said that the combination of these incredibly complex rules and regulations about when you can speak about politics and when you can’t and who can speak about politics and who can’t, combined with the Federal Election Commission-a government agency that basically has to approve your political speech-together that operates as a de fact system of prior restraint. As we know, a system of prior restrains is the reason the Framers wrote the First Amendment.
Up until today, we had a First Amendment caste system. It discriminated in so many different ways among different kinds of individuals and organizations and groups as to whether or not they could speak about politics. Here, in a very bold decision, the Court said you can’t make First Amendment rights dependent on the identity of the speaker.
Q&A
Legislative response to Citizens United?:
von Spakovsky: The narrower grounds that were argued by Citizens Untied on the statute itself don’t apply. The Court said it can’t make a decision on those narrower grounds, therefore it’s a Constitutional violation. So I think it would be very difficult to design a federal statute that re-imposes this kind of restriction without it being immediately found unconstitutional.
Smith: The other act that has been introduced [into Congress to address the Citizens United ruling] is this Fair Elections Now Act that says we need the government to fund [federal] campaigns. That won’t make a difference in this case because will still be allowed to make independent expenditures. It seems funny to me that that has been proposed as an alternative. As for Grayson’s proposals, I think they’re rather bombastic.
Might other campaign finance laws be challenged using the Citizens United rationale?:
Bopp: There has been a huge regulatory regime built on the basis of Austin… there are all sorts of provisions that provide detailed, complex regulation of all sorts of activity that are prefaced on the proposition that corporations and labor unions can be prohibited from political speech. Unless they want some court to do it… the FEC has a huge job to repeal a substantial amount of their regulations on labor union and corporate political activity.
On the campaign finance regulation community’s charge that Citizens United was an activist ruling:
von Spakovsky: There were two lines of cases that were in conflict with each other. If you go back to the Buckley decision…the Court made it clear that while it was upholding the constitutionality of contribution limits, it specifically said that expenditure bans which applied to corporations, individuals and unions failed to serve any substantial governmental interest. What it has done by overruling Austin is go back to the Buckley decision because those two were in conflict. The Court has resolved a conflict between two Court decisions.
Bopp: I’m perplexed by the agenda [of the majority of the Court] argument… people from all sides of the political spectrum have found the importance of vigorous protection of the First Amendment and some of the greatest champions of the First Amendment and the freedom it affords citizens to participate in our democratic process were the great liberal justices of our Court. I see this as a fight between incumbent politicians who want to use government power to s
top people from criticizing them against the people, of all political stripes, who simply want to participate in our democratic process and are hammered by the government when they seek to do that.
What about shareholder governance of independent expenditures?:
von Spakovsky: Shareholders already have the ability; if they can convince enough other shareholders to make changes in corporate governance or what a corporation is doing, they already do that.
Smith: Corporations spend money on all kinds of things now that not every shareholder agrees with. This is sort of a red herring. One group that has been making this argument is the Brennan Center for Justice. Look at who funds the Brennan Center; Enron has given them money, Bear Stearns gave them money, Phillip Morris has given them money … it’s like a rogue’s gallery of American corporations. Never once have I heard them shed a tear over any of those corporations that was being “force” to support the Brennan Center. It’s a make weight argument by people who really want to limit speech.
Bopp: Shareholders have a fundamental right to relieve them of any anxiety over what the corporation is doing and that is to simply sell the stock…shareholders are not shanghaied and they’re not enslaved. They have freedom to associate with a corporation or not and that is the freedom that protects them most centrally from having their money used in a way they don’t want it used.
Gora: This actually frees shareholders up. Under Austin, if they wanted a corporation to speak out on issues, they were banned from doing so. Now the shareholders have a choice. If they want a corporation to speak out, they can encourage the corporation to do so. People who are concerned about shareholders rights should take heart from this decision.
