On Mar. 24, the Supreme Court heard arguments in Citizens United v. FEC, the latest installment in an ongoing series of challenges to the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold. This case has far-reaching implications for the future of campaign activities, and draws an important line between the right of citizens to speak out and the power of government to imprison them if they do.
The group Citizens United produced a documentary critical of Hillary Clinton during her failed presidential campaign. (Citizens United also made a similar film about Barack Obama, though this lawsuit focused on the Clinton movie.) But when the group sought to market the movie through Video On Demand, the FEC blocked it. The FEC cited BCRA, which makes it a federal felony to fund any TV or radio broadcast that names a candidate for federal office in the thirty days prior to a primary election or sixty days prior to a general election, called the "blackout" periods.
The Obama Justice Department defended the FEC's action with a team from the department's elite Solicitor General's Office. But that team was outmatched by the lawyer representing Citizens United, renowned former Solicitor General Ted Olson.
Far more important than the specific facts in this case was the enormous scope of power that the Obama Administration was claiming under BCRA, an array so broad that the justices balked at the government's answers to their questions. The Obama Administration claimed that BCRA allows the federal government to ban a 600-page book if it mentions a candidate's name only once, a 90-minute movie if it mentions a candidate's name once, or even a toy action figure of a candidate. If the organization uses a single dime of its general funds to produce, promote or distribute any such materials during the "blackout" periods, it becomes a federal crime.
The key justices in this case seemed astonished at the broad powers the Obama Administration was claiming under BCRA, and seem poised to rule 5-4 in favor of Citizens United. This would continue a steady trend over the past couple years, with moderate Justice Kennedy siding with the four conservative justices on issues of political speech. This will be the third BCRA suit in as many years, and should be decided by the same split as they others.
The issue in these cases is the freedom of individuals to act together to speak out on public matters. As Ted Olson explained in his opening statement, "Participation in the political process is the First Amendment's most fundamental guarantee. Yet that freedom is being smothered by one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented."
One of the essential ingredients of a free society is the right to speak out for or against candidates running for office. Those who seek or hold power are held accountable through the ballot box, and freely sharing information and opinions about these candidates, their actions and their policies is the best safeguard to keep them honest and enable citizens to make an informed decision when they vote.
Citizens United v. FEC perfectly reflects these concerns. As Olson emphasized in his closing statements, BCRA includes draconian penalties for alleged violations. Selling a banned movie, book or even toy action figure is a felony under this law, punishable by five years in federal prison. If someone can only speak out about political candidates by facing such a possibility, Olson concluded, "He won't dare take the chance."
Such laws have a chilling effect on political speech that violates the core purpose of the First Amendment. That such a law could ever be enacted in this country is itself a fact that should raise concerns. And in a couple months, it looks like the Supreme Court will rectify part of this disturbing reality.
Regardless of political affiliation, all those who support a free and open society should hope that more cases like this one come down the pike soon, until all of these unconstitutional burdens are struck down.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.