“There are real problems when people want to spend lots of money on a candidate … they’ll drown out the people who don’t have a lot of money,” Supreme Court Justice Stephen Breyer recently remarked in reference to the infamous 5-4 Citizens United v. Federal Election Commission decision of 2010, whose dissenting minority of four he had joined.
By nature, when a decision isn’t unanimous, “somebody is making a mistake,” he added.
But which side was making a mistake in Citizens United?
Was it the five-justice majority, who struck down key provisions in the Bipartisan Campaign Reform Act of 2002 (“McCain-Feingold Act”) that had prohibited corporations and unions from using their general treasury funds on “electioneering communications,” defined as cable, satellite, and broadcast communications (in essence, TV commercials) that refer to a clearly identified candidate for Federal office within 30 days of a primary or 60 days of a general election? (In short, the majority ruled that corporations henceforth could use corporate money to fund political ads aired right before a federal election.)
Or was it the minority, who considered it necessary that “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas” be reined in, and who would have thus preferred that the relevant McCain-Feingold provisions be upheld rather than struck down, for the ability of filthy-rich corporations to spend unlimited amounts of money on flooding the airwaves with campaign ads right before an election would give them an unfair advantage over us regular folks who simply cannot afford to make our voices heard this loudly?
Critics of Citizens United point out how terrible it is for the country that wealthy corporations were handed so humongous a political megaphone by the Supreme Court. In his 2010 State of the Union address, President Obama lamented that
[l]ast week, the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.
This overt jab at the Court famously prompted the attending Justice Alito, who had ruled in favor of said reversal, to shake his head and mouth the words “not true.” (To eliminate at least one source of aggravation from his life, Mr Alito hasn’t attended a SOTU since.)
True or not, the decision has been termed “one of the most dangerous rulings in America” and has even been likened Dred Scott v. Sanford, as in this funereal 11-minute farewell oration to all things freedom and democracy, eloquently delivered by a somber Keith Olbermann only a few hours after the Supreme Court had announced its verdict:
The question before the Court, however, wasn’t whether §203 of the McCain-Feingold Act was good for the country and whether invalidating it might therefore be bad for the country, but whether it violated the First Amendment. The Supreme Court isn’t in the “good for the country vs. bad for the country” business. The Supreme Court is in the “constitutional vs. unconstitutional” business. People’s capacity for confusing the concepts of “constitutional” and “desirable” borders on the grotesque. One would think that a common chinstrap should be able to separate the two, yet homo sapiens seems oddly at sea in this respect, as discussed in more detail in a previous post.
Congress shall make no law … abridging the freedom of speech, or of the press; … (First Amendment, U.S. Constitution)
So did the McCain-Feingold Act—a law made by Congress—abridge corporations’ and unions’ freedom of speech by prohibiting them to reach into their corporate coffers to fund political ads in the run-up to an election?
Two arguments in particular are being floated by those who answer this question in the negative and insist that Citizens United was wrongly decided, i.e., that McCain-Feingold was perfectly constitutional and should never have been struck down:
- Corporations aren’t people.
- Money isn’t speech.
Are corporations people? In other words, do entities other than individual persons have freedom of speech in the first place?
A corporation is a particular form of association of people (not of insects or minerals), and the First Amendment doesn’t contain an exception for associations of people, let alone single out specific types of associations as having less freedom of speech than others.
If my buddies and I founded a Barry Manilow fan club, any law prohibiting us to use money from our fan club coffers to print pamphlets highlighting Mr Manilow’s qualities as a performer would be blatantly unconstitutional right out of the gate. It would be ridiculous to argue that since we’d still have the freedom to print as many pamphlets as we wanted as individuals using money from our personal bank accounts, pruning our freedom to fund them jointly with fan club money was OK.
Which raises the second question:
Is money speech? Put differently, is volume an integral component of speech?
If you’re an actor and audience members in the back of the room have trouble making out what you’re saying because you’re mumbling like James Dean after a root canal and your voice doesn’t carry past the third row, will you sign up for makeup classes? Of course not. You’ll sign up for speech classes. That’s the department in charge of fixing your volume woes.
You may be rich enough to have a million pamphlets printed to disseminate your message. I may only be able to afford to have ten pamphlets printed to disseminate mine. Obviously, your finances permit you to speak at a higher volume than mine permit me to speak. So can Congress turn down your volume in order to enhance my volume relative to yours without abridging your freedom of speech? Hardly. To argue that Congress abridges my freedom of speech by not making a law to abridge yours seems a mite awkward, to put it mildly.
Everybody can step on a crate in the park and speak. It takes no money to do that, and that’s all some people can afford. If money weren’t speech, it would follow that any law cutting a speaker’s volume down to that which can be attained by stepping on a crate in the park would be constitutional. (In fact, a law could be passed to mandate that folks with disproportionately more powerful sets of pipes keep it down a bit so as not to outdecibel the more soft-spoken orators in the park.)
The First Amendment also guarantees freedom of the press. If money weren’t speech, Congress could throttle the New York Times because smaller papers operating on lower budgets can’t speak as loudly as the rich kid on the block can.
If money weren’t speech, Congress could restrict the sale of bullhorns and microphones because the penniless cannot afford these volume enhancers. It’s absurd.
So absurd, in fact, that even Justice Stevens, the hero of Citizens United opponents, acknowledged in his spirited 90-page dissent that money is, in fact, speech, and that corporations do, in fact, have freedom thereof, even if one must comb through his dissent with a jeweler’s loupe to locate said acknowledgment:
The laws upheld in Austin and McConnell leave open many additional avenues for corporations’ political speech.
Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission are previous Supreme Court rulings on the financing of corporate speech. Obviously, if Austin and McConnell leave open many “additional” avenues for corporations’ political speech, it means that the avenue closed by the McCain-Feingold Act (i.e., the avenue of money in the form of corporate funds to buy broadcast ads before federal elections) indeed was an avenue for political speech. And you cannot shut down an avenue for political speech without abridging the freedom of speech of whose avenue you shut.
And if corporations didn’t have freedom of speech to begin with, the congressional closing of any avenues for it wouldn’t have been an issue that required pointing out that plenty other avenues for it were still open even if one was shut down. Justice Stevens could have simply declared that explained why corporations were exempt from First Amendment protection. Instead, he introduces the novel constitutional principle of limited freedom of speech: he doesn’t deny that McCain-Feingold was an abridgment of speech—of political speech no less, the very kind the First Amendment was designed to protect above all others—but argues, it seems, that the abridgment of political speech imposed by McCain-Feingold was of an acceptable degree.
So both sides on the Court agreed that a freedom of speech abridgment had occurred, but only the dissenting minority argued that the abridgment hadn’t risen to the level of unconstitutionality.
In fairness, freedom of speech has been found to be at least somewhat limited in the past:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. (Oliver Wendell Holmes, Schenck v. United States, 1919)
But does shouting “Vote for candidate X! Don’t vote for candidate Y!” right before an election—if such shouting is funded by corporate money—constitute such a clear and present danger that it will bring about the substantive evils that Congress has a right to prevent?
Many seem to think so.
Who does not seem to think so is the American Civil Liberties Union, who in 2009 filed an amicus brief with the Supreme Court plumping for the very decision which—in a textbook instance of strange bedfellows—the conservative bloc on the Court promptly handed down.
From the ACLU brief:
Like many other advocacy organizations, the ACLU has found that broadcast ads can be an important tool for promoting our ideological goals. … [The McCain-Feingold Act]’s ban on “electioneering communications” currently extends only to broadcast, cable and satellite. That selective focus presents its own constitutional problems. … As the government made perfectly clear during oral argument in March, its constitutional theory would permit Congress to ban a book as well as a 30-second TV spot if the book satisfied the operative definition of an “electioneering communication” and the book’s corporate publisher paid for the book with general treasury funds (as it almost certainly would). … The breadth of that concession is staggering. It has become commonplace to publish books about candidates during campaign season. Such books almost always take a position on a candidate’s character, either explicitly or implicitly, which is one of the indicia of prohibited advocacy that this Court identified in WRTL. The fact that such books could be banned under the government’s theory unless funded by a PAC vividly illustrates why those criteria are insufficient to safeguard the important First Amendment interests at stake.
If even the ACLU believes Citizens United was decided correctly, the decision can’t be quite as cut-and-dried and Dred-Scottish as its opponents make it out to be.
During oral argument before the Supreme Court, the lawyer for the government (i.e., the guy who made the case that the McCain-Feingold Act be upheld) admitted quite openly that there was, in principle, no difference between TV ads that “refer to a clearly identified candidate for Federal office” within a given time period before an election and books that might do the same, even though McCain-Feingold covered broadcast, cable, and satellite communications only.
Therefore, if lowering the volume on political TV ads were constitutional, it follows that restricting the sale of books that met the same criteria as those restricted TV ads would be constitutional as well, given that even the advocate for the disputed law conceded that there’s no fundamental difference between books and TV ads.
No doubt Justice Stevens understands the concept of setting a precedent on a slippery slope, yet in his dissent he pretends not to understand it:
Roaming far afield from the case at hand, the majority worries that the Government will use §203 to ban books, pamphlets, and blogs. […] Yet by its plain terms, §203 does not apply to printed material. […] And in light of the ordinary understanding of the terms “broadcast, cable, [and] satellite,” […] coupled with Congress’ clear aim of targeting “a virtual torrent of televised election-related ads,” […] we highly doubt that §203 could be interpreted to apply to a Web site or book that happens to be transmitted at some stage over airwaves or cable lines, or that the FEC would ever try to do so
Of course the specific law at issue couldn’t be interpreted to apply to printed material. But some future law might, and such a law would be much harder to strike down had McCain-Feingold be upheld, given that even the spokesperson for the government conceded that there was no fundamental difference between broadcast ads and books.
Justice Stevens’s most puzzling statement, however, appears on page 27 of his 90-page broadside against the Opinion of the Court:
In many ways, then, §203 functions as a source restriction or a time, place, and manner restriction. It applies in a viewpoint-neutral fashion to a narrow subset of advocacy messages about clearly identified candidates for federal office, made during discrete time periods through discrete channels.
“Viewpoint-neutral”? What is that supposed to mean?
Sure, in a civilized society, our ability to speak must be subjected to time, place, manner, and source restrictions in order to prevent chaos. You can’t walk around a residential neighborhood at 3 A.M. with a bullhorn promoting your favorite vegetables, because people have a right to sleep. And although you can get up on your little soapbox in the park and run your rhymes there, you cannot place your soapbox in the middle of Ninth Avenue during rush hour.
Such restrictions, of course, must be content-neutral, not merely viewpoint-neutral. Congress can’t pass a law that prohibits you from promoting your favorite vegetables with a bullhorn at night while allowing you to promote anything else in this same manner as long as it isn’t in the vegetable family. The ban on discussing vegetables would be viewpoint-neutral—after all, you’d be prohibited from touting turnips just as you’d be prohibited from touting tomatoes—but not content-neutral, as it would single out a specific topic for censorship.
And Congress certainly can’t enact a time/place/manner gag order that limits political speech while permitting all other forms of speech. This would be a kind of time/place/manner restriction “unknown this side of the looking glass,” to borrow a classic Scalia-ism from District of Columbia v. Heller. The good Justice Stevens totally plowed through the guardrail on that one.
So if the government tells us to shut up under certain circumstances, it can’t do so because of who we are and what we want to talk about. There must exist some compelling and common-sense reason to enforce silence at a particular time and place, or using a particular channel, that is independent of the identity of the speaker and his message.
Therefore, a law that prohibits corporations to use corporate money to fund broadcast ads that refer to a clearly identified political candidate but allows them to fund broadcast ads that refer to Pinnochio doesn’t meet the most elementary standard of content-neutrality required to justify a time/place/manner/source restriction.
Needless to say, imposing a time/place/manner or source restriction for the sole sake of silencing specific speakers and messages that would necessarily be included in a wholesale restriction on speech wouldn’t fly, either, so Congress couldn’t prohibit corporations from purchasing airtime, period.
By nature, when a decision isn’t unanimous, “somebody is making a mistake,” to reprise Justice Breyer’s assertion.
Justice Stevens and the minority on the Court, conceding that corporations’ freedom of speech had been abridged by the McCain-Feingold Act, presented a “the greater good is served if” argument, the very kind of argument the Constitution itself exists to prevent, for to abide by the Constitution to whatever extent is deemed most conducive to the greater good on a case-by-case basis amounts to having no constitution at all.
The minority made a mistake.