February 4, 2010
Media Insiders Ousted by Citizens United v. FECBy Eileen McDevitt and Larrey Anderson
The Supreme Court's decision in Citizens United stands with Brown v. Board of Education as a landmark refutation of discriminatory treatment. It is ironic that the President accused the members of the Supreme Court, who have upheld freedom of speech for corporations and unions, as being politically motivated [i]. In fact, it was the dissenters who embraced political preferential treatment of select corporations and preferred access of a few to the airwaves during political campaigns, which is a separate and unequal protection of speech.
If Justice Reed in 1954 had written a dissent to Brown v. Board of Education, it undoubtedly would have been based in the same legal logic opined in Justice Stevens' [ii] dissent to the recent United States Supreme Court decision, Citizens United v. Federal Election Commission ("Citizens").
Justice Stanley Reed, a Democrat Southerner, and sympathetic to the concept and application of "separate but equal" treatment of black children [iii], elected to take the high road and joined in the Warren Court's unanimous decision [iv], thereby abandoning the legal argument of originalism [v].
In Brown v. Board of Education, originalism would have been based on an argument [vi] that the framers of this country's Constitution did not intend for the integration of black people with white people. Hence equal and separate schools and facilities for white and blacks would have been appropriate. It is this type of reasoning that Justice Stevens asserts should be followed in denying freedom of speech to corporations and unions.
Citizens placed before the Supreme Court the question of whether a nonprofit corporation, such as Citizens United, could be lawfully barred from airing ads directing the public to the viewing of a political advocacy film [vii].
Federal law (2 U.S.C. §441b) prohibited corporations and unions from taking monies from their general treasury and funding any candidacy advertisements in certain federal elections. This law also prohibited corporations and unions from using their general funds to finance any broadcast, cable, or satellite communication within thirty days of a primary election or sixty days of a general election that referred to a candidate for a federal office.
In the opinion issued January 21, 2010, Justice Anthony Kennedy clearly and succinctly outlined the Court's cautious approach to its final conclusion: Congress cannot infringe on a corporation's or a union's constitutional right to free speech.
Originally, the §441b ban applied even to nonprofit, non-business corporations formed for the purpose of promoting political ideas regardless of where their money came from [viii]. (Contrary to Obama's claim in the State of the Union address, there is no reference to foreign corporations in §411b, and accordingly, the Court made no ruling regarding foreign corporations.)
In the 1986 MCFL [ix] decision, the Supreme Court held invalid the application of §441b to nonprofit political activity corporations not engaged in business activities which did not accept contributions from for-profit corporations or labor unions. (See the endnotes to this article for examples of how these changing laws could have affected ordinary citizens.)
Congress responded by passing the Wellstone Amendment, extending the §441b ban to all nonprofit corporations [x].
The Supreme Court in McConnell held that the Wellstone Amendment did not alter the Supreme Court's ruling in MCFL [xi].
Congress then passed the Snowe-Jeffords Amendment, which said if the Wellstone Amendment is found to be invalid, then the §441 nonprofit exemption would be limited to nonprofit corporations that receive funds exclusively from individuals and maintain separate bank accounts [xii].
If that isn't confusing enough, the government argued the application of de minimis standards, meaning that if the corporate monies received by Citizens United had been small enough, the corporate donations could have been ignored, and the Citizens United television ads could have been aired [xiii].
After reviewing the statute's history and its impact on political speech, the Supreme Court basically said [xiv], "Stop!" It is not possible to reach a decision on the basis of the statute alone [xv] ("as-applied" constitutional challenges). We must review the constitutionality of the §441b ban of free speech (a "facial" constitutional challenge).
An "as-applied" challenge is where the Court's review of the constitutionality of the legislatively enacted law is limited to the set of facts in the case before it: Did the lower court or government agency violate the appellant's constitutional rights, in that court or agency's application of the state or federal law, in reaching its ruling against the appellant?
A "facial" challenge is where the Supreme Court looks to the legislatively enacted law and determines if the law itself is unconstitutional. Does the law serve to take away freedoms guaranteed under the Constitution?
As already noted, the majority found that an application of §441b to the facts in Citizens (an as-applied review) would result in a ruling in the FEC's favor. However, such a wide, sweeping ban on corporation and unions' freedom of speech violates the First Amendment [xvi].
Additional reasons cited in support of the majority's ruling that §441b is invalid/unconstitutional are:
First, not even the federal government unequivocally supports an outright finding that §441b is constitutional [xvii].
Second, the extended time to review an FEC ban on airing materials serves to discourage freedom of speech [xviii].
Finally, afraid of the uncertain risk of criminal and/or civil prosecution, corporations and unions are forced to seek FEC review. In cases where the FEC issues "advisory" opinions prohibiting speech, those without the funds to seek legal review "will choose simply to abstain from protected speech" [xix].
The dissenting justices in Citizens intertwine the originalism argument with the argument that the majority did not apply stare decisis. Stare decisis is Latin and essentially means that courts should stand by their prior decisions. By weaving the stare decisis argument with the originalism argument, the dissent asserts that corporations were never intended to have freedom of speech and should not be granted it now.
Justice Kennedy's majority opinion gives an exhaustive review of the Court's previous decisions. Kennedy clearly establishes that corporations enjoyed freedom of speech protection under the First Amendment until the Supreme Court held in the 1990 Austin decision that political speech may be banned based on the speaker's identity.
Like the Court in Brown v. Board of Education, the Citizens majority elected to examine the real-life application of its prior decisions. The Court noted that §441b does not address the often unknown and unseen influential interactions between corporations and Congress and/or presidential administrations with corporations' executives and confidants, as well as lobbyists -- which are routine and private [xx]. Rather, §441b has done little but interfere with the open-market exchange of ideas and allows for vast and far-reaching government censorship. Accordingly, the Supreme Court overturned the 1990 Austin decision and its progeny.
Given these findings and holdings in Citizens, why do the Court's dissenters, the Democrats in Congress, and the President so ardently oppose the lifting of the thirty- and sixty-day bans on political speech by corporations and unions?
As is pointed out in the Citizens opinion, media corporations are currently exempted from the ban on political speech. So the corporate giant GE is free to influence the political leanings of the media businesses it owns. These include NBC and MS-NBC, as well as the political content within the shows airing on GE's SyFy, USA, Bravo, and Sleuth channels.
Certainly, current political leanings in the GE-owned news media did not hurt GE's position in its federally-awarded contracts of $570.3 million for military aircraft engines and $405.9 million for naval nuclear propulsion components; federal legislation [xxi] that could mean millions of dollars in sales for GE's health care technology; the possibility of preferred status for GE in the government's Energy Star programs [xxii]; expansion of federal funding for GE's wind turbines; and potential federal investment in GE's smart grid products. These are just a few of the possible benefits of being one of the select corporations in America that have enjoyed unrestricted political speech in the final month(s) before an election.
An examination of the Board Members of corporate media giants GE, Walt Disney (ABC), and CBS [xxiii] shows that their corporate positions and affiliated director positions represent the interests of global insurance, security, defense, energy, and financial corporations, as well as banks, equity funds, investment funds, and utilities. Additionally, not all corporations' parent companies are U.S. companies, and not all directors are American citizens.
Like the media corporations, Political Action Committees (PACs) enjoyed uncensored speech; PACs were exempt from the §441b ban on political activities and could air ads, hand out pamphlets, etc. In 2009-2010 alone, fifty-nine Labor PACs donated over $20.6 million to federal Democrat candidates, and over 82% of the nonprofit PACs' expenditures were for federal Democrat candidates.
Since 1989, of the top twenty PAC contributors to federal elections, twelve have given over 90% of their contributions to Democrat candidates. One has given 82% to Democrats, with a fourteenth PAC having given 64% to Democrats.
Three PACs have split their contributions between Republicans and Democrats. The remaining three PACs have given between 60% and 67% of their contributions to Republicans.
With fourteen of the top twenty PACs contributing to Democrats and so many Board Directors of the media corporations affiliated with businesses seeking government contracts and/or major players in economics and world markets, it is little wonder that the Democrats were opposed to upholding the First Amendment.
After the Citizens decision was handed down, major non-media corporations asked Congress for new laws, fearful that politicians would demand more money. Perhaps laws should be enacted that prohibit lobbyists from holding administrative positions; prohibit members of Congress from voting on issues that impact companies on which their spouses sit on boards, have a financial interest, or from which they receive direct benefits; and from exacting bribes paid with taxpayer money for their votes.
Like the Court in Brown v. Board of Education, today's Supreme Court majority looked at the real-life applications of federal law and refused to abandon the Constitution by perpetuating inequality.
Eileen McDevitt is a retired attorney. Larrey Anderson is a writer, a philosopher, and submissions editor for American Thinker. He is the author of The Order of the Beloved, and the memoir Underground: Life and Survival in the Russian Black Market.
[i] "The irony is that Obama's campaign was bankrolled by unions and the FEC is currently investigating allegations that it received millions of dollars in contributions from as many as 50 different foreign countries and various interests, such as Hamas."
[iii] Separate but equal was the case law that allowed for the continued segregation of white and black students. It was based on the proposition that a state's creation of separate schools, with substantially equal facilities, for black students would result in equal treatment.
[v] See Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality, Vintage Books, ISBN 0394722558, 9780394722559.
[vi] See Justice Alito's concurring opinion in Citizens: "An antislavery Quaker corporation petitioned the First Congress, distributed pamphlets and communicated through the press in 1790. ... The dissent offers no evidence -- none whatsoever -- that the First Amendment's unqualified text was originally understood to exclude such associational speech from its protection."
[vii] The Supreme Court asked for additional briefs and arguments on whether the §441b ban of political speech was constitutional.
[viii] For example, suppose your neighborhood has a pressing political issue that would impact your homes or schools. You meet and form a nonprofit corporation for the purpose of addressing that issue, and your nonprofit collects funds. If your nonprofit ran a campaign that served in any manner to express any advocacy for a federal candidate, and any materials were broadcast within the restricted time periods, the nonprofit corporations and its acting members would be in violation of §441(b) and could be subject to criminal and civil prosecution.
[xi] The neighborhood nonprofit corporation regained the freedom to air those political ads -- or did it?
[xii] The neighborhood nonprofit corporation was once again able to run political ads, provided the nonprofit had not accepted contributions from the local deli, bagel store, incorporated community garden, fireman's fund, etc., and the nonprofit had not mixed the ad monies with monies the nonprofit gathered to improve the local park, put in better lights, plant trees, etc.
[xiii] If the donation the neighborhood nonprofit corporation received from the incorporated community garden were small enough (de minimis) and the political ads money were maintained in a separate account, then the nonprofit would be able (in theory) to run the political ads.
...Except that the government proposed shifting the responsibility to the courts to determine what was de minimis on a case-by-basis. So not until after the nonprofit ran the ads, and a civil or criminal complaint had been filed, and the court rendered a final decision, would the neighborhood nonprofit know if the contribution by the community garden had been de minimis and the airing of the ad had been lawful. Better hope that you had a good attorney; that the court was sympathetic to your status, your political position, and/or likes community gardens; and that you had enough cash to pay for that good attorney -- not to mention that it would take a year or two, perhaps even little longer, for the litigation to be resolved.
[xiv] "... the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment. [Citation omitted.] It is not judicial restraint to accept an unsound narrow argument just so the Court can avoid another argument with broader implications."
[xv] The Supreme Court first determined that a strict examination of the facts under §441b (assuming the constitutionality of §441b) would result in a ruling in FEC's favor.
[xvi] "As noted above, Citizens United's narrower arguments are not sustainable under a fair reading of the statute. In the exercise of its judicial responsibility, it is necessary then for the Court to consider the facial validity of §441b. Any other course of decision would prolong the substantial, nation-wide chilling effect caused by §441b's prohibitions on corporate expenditures."
[xvii] The government made the alternative argument for a de minimis standard/applications to §441b and held the confusing position that books may not constitute a banned media. However, they asserted that pamphlets are a form of media to be banned under §441b.
[xviii] The Court noted that political issues are fluid and often compelling in the final days of an election. It is not possible to exhaust one's legal rights and still have time to broadcast one's political materials. Citizens United received its final legal decision two years after it requested a FEC review and a year after the election primaries. The permission granted to Citizens United for airing political broadcasts, inherent in the constitutional finding under the Supreme Court decision, is not timely for the airing of the Citizens United film in the 2009 primaries. So even in winning its legal battle, Citizens United lost its freedom to present its views in the election.
[xix] Clearly, small corporations and/or unions would be effectively silenced...including your neighborhoods nonprofit corporation.
[xx] "An amici brief filed on behalf of Montana and 25 other States notes that lobbying and corporate communications with elected officials occur on a regular basis. [Citation omitted.] When that phenomenon is coupled with §441b, the result is that smaller or nonprofit corporations cannot raise a voice to object when other corporations, including those with vast wealth, are cooperating with the Government, That cooperation may sometimes be voluntary, or it may be at the demand of a Government official who uses his or her authority, influence, and power to threaten corporations to support the Government's policies. Those kinds of interactions are often unknown and unseen. The speech that §441b forbids, though, is public, and all can judge its content and purpose."
[xxii] The U.S. Environmental Protection Agency's and U.S. Department of Energy's recent memorandum of understanding an Enhanced Program Plan for ENERGY STAR products proposes significant administrative and program changes to ENERGY STAR, including the proposed requirement for product testing by accredited labs; the imposition of a top-tier "Super Star" program; the proposal for overall limits on energy use; the agencies' responsiveness to stakeholder comments; and the use of advocates as consultants.
[xxiii] Not included in the list is the owner of FOX News Corp. Additionally, National Amusements, Inc. is the parent company of both Viacom and CBS. This review does not look at the Board of Directors for Viacom, whose more commonly recognized television channels are BET, MTV, and Nickelodeon, as well as approximately 155 networks around the world.