Supreme Court Upholds Free Speech

by Jay Johansen
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The Bipartisan Campaign Reform Act of 2002, commonly known as "McCain-Feingold" after the Republican and Democrat who joined together to write it, banned corporations and labor unions from making any public statement about a candidate for federal office in the 30 days before a primary or the 60 days before a general election. These organiazations were barred from even saying or printing the name of a candidate.

Supporters routinely described the law as applying to big corporations, like General Motors and Exxon. But the law applied equally to organizations that most Americans would not immediately think of as "corporations", like a family business or doctor's office, or perhaps most pointedly, to non-profit social action organizations like Right to Life, the Sierra Club, the National Rifle Association, and the American Civil Liberties Union. Under McCain-Feingold, if in the weeks leading up to an election an NRA spokesman appeared on the radio stating, "Governor Brown has always been a friend of gun owners", that would be a crime and he could go to jail for five years. Indeed, if the Sierra Club took out a newspaper ad that simply stated, "Senator Jones voted against the Endangered Species Act", with no commentary or conclusions drawn at all, that would be a crime.

The law did not apply to individuals, but few individuals have the money to take out newspaper or television ads on their own. Most people would have to band together with others to raise the money to get any media coverage, and this was what was made illegal.

The law did not apply to Political Action Committees. It also specifically exempted "bona fide news organizations", even if they were corporations. (So General Electric was allowed to speak out on politics because they owned NBC News, but Sylvania and Phillips were not.)

So in practice, the only people who could speak out publicly on candidates for public office were the candidates themselves, Political Action Committees, the news media, and rich people.

Congressional Intent

During the debate in Congress, the politicians made very clear what their goal was in passing this legislation. Senator McCain, one of the authors, said:

These groups often run ads that the candidates themselves disapprove of. Further, these ads are almost always negative attack ads and do little to further beneficial debate and a healthy political dialog. To be honest, they simply drive up an individual candidate’s negative polling numbers and increase public cynicism for public service in general.

Senator Wellstone said:

I think these issue advocacy ads are a nightmare. I think all of us should hate them . ... We could get some of this poison politics off television.

Senator after senator rose to complain about "attack ads" and "negative politics". In short, the stated purpose of this law was to make it illegal for Americans to criticize members of Congress. This was a bipartisan bill. Republicans and Democrats may not agree on much, but they could come together on one thing: silencing criticism.


The law plugged some obvious loopholes. Like, it not only barred saying the name of a candidate, but also anything that "clearly identified" a candidate, like showing his picture or describing him in some way ("the Democratic candidate for Senator" or "that woman from Alaska", for example). They also barred a corporation from setting up a front organization by prohibiting any organization from speaking in public if they received even one cent from a corporation. Nevertheless, (surprise surprise) people found loopholes. One of the biggest was that the IRS had regulations written in an entirely unrelated context that described a "section 527" political organization. Some groups declared that because they qualified as section 527 organizations they were not subject to McCain-Feingold. The Federal Election Commission rejected this interpretation and fined several such groups hundreds of thousands of dollars, but the issue was never fully resolved.


Then, on Jan 21, 2010 the Supreme Court struck down the key provisions of McCain-Feingold in its decision in Citizens United v. Federal Election Commission.

The case was brought by an organization called "Citizens United". They wanted to distribute a documentary about Hillary Clinton's career that portrayed her negatively and was pretty clearly intended to encourage people not to vote for her for president. They were not a corporation, and most of their money came from private individuals who agreed with their political goals. But they did get some money from corporations. They asked the Federal Election Commission if they could legally distribute the video. The FEC said no. The video was never distributed. Citizens United, a group of Americans seeking to voice facts and opinions about a candidate for public office, was effectively censored. They appealed to the courts, and ultimately the Supreme Court agreed with them.

The Court wrote:

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. The First Amendment confirms the freedom to think for ourselves.

The Regulatory Nightmare

Paradoxically, laws that were supposed to prevent the rich and powerful from being able to overpower the "common people" in political debate have probably done more to silence the common people than the rich and powerful. They have created a maze of complicated laws and regulations that anyone who wants to speak out must navigate.

As the court points out:

As additional rules are created for regulating political speech, any speech arguably within their reach is chilled. Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” These entities are subject to separate rules for 33 different types of political speech. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. In fact, after this Court in WRTL [a previous case] adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling. This regulatory scheme may not be a prior restraint onspeech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. [Citations omitted.]

You could get special permission to speak out by forming a Political Action Committee, which is exempt from many of the rules. But as the court noted:

PACs are burdensome alternatives; they are expensive toadminister and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years, and file an organization statement and report changes to this information within 10 days. And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur: “‘These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate’s authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation.’” PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time tomake its views known regarding candidates and issues in a current campaign. [Citations omitted.]

As a former treasurer of a PAC, I might also add that in the final weeks before an election, PACs are required to file daily reports of their activities.

Just reading 2,000 pages of regulations is a steep challenge for anyone. Trying to make sense of all the legal terminolgoy and technicalities is a daunting task even for a professional lawyer. If a small business wanted to place an ad in the paper speaking out on a political issue, or if a few friends wanted to get together and pool their money to send out a mailing to their neighbors, they would have to read and understand all these regulations. One little slip on the technicalities and they could face hundreds of thousands of dollars in fine or years in prison. Realistically, only someone with the money to hire a lawyer could dare speak on political subjects.

Under the law, anyone who spent any money to discuss a political candidate was subject to all these laws and regulations. I never heard of them prosecuting someone for spending money on a stamp to send a letter to the editor of the local newspaper, but they could have. I'm sure they didn't because it would have created too much opposition. But that's the point: The law never was and never could be fairly enforced. It was up to government officials to decide who was allowed to speak and who wasn't.

As a PAC treasurer, I subscribed to the Federal Election Commission's newsletter of new regulations and "enforcement actions". In one issue, they mentioned two cases brought before the FEC. One involved an officer in a candidate's campaign who embezzled hundreds of thousands of dollars in contributions. The government ruled that as he had already spent the money, there was nothing they could do, and he basically got off with a warning not to do it again. The other case involved a candidate who failed to file the required "pre-primary" report. In his state, when only one candidate files for a primary, they skip the election and automatically declare him the winner to save money. As there was no primary, he thought he didn't need to file a pre-primary report. No, the FEC said, in such cases you must file the report based on the date the primary would have been held if there had been one. It sounded like an honest misunderstanding of the rules to me, but they nailed him to the wall, fining him tens of thousands of dollars.

An extreme might-have-been

In the early months of Mr Obama's presidency, his administration launched something of a campaign against Fox News. White House chief-of-staff Rahm Emanuel described Fox as "not a news organization so much as it has a perspective", and he contrasted them with CNN, which he described as "a legitimate news organization". They tried to persuade other news organizations not to co-operate with Fox -- like to exclude Fox from the routine sharing of technical equipment at press conferences. The campaign ultimately failed when the other news people backed Fox, but I wonder: How far did the administration intend to carry this? If they had convinced the FEC that Fox was not a "bona fide news organization", and thus not entitled to the special exemption from the ban on political speech by corporations, Fox would have been barred not just from airing commentary about political candidates, but even from covering political campaigns. Remember, it was illegal to even say the name of a candidate in the last two months before an election. The FEC commissioners are appointed by Congress and the president: they are by any reasonable definition political appointees. I'm not accusing the Obama administration of anything here. Maybe the thought of doing this never even crossed their minds. But if they never thought of it, maybe someone else did, or maybe a future president or Congress would. McCain-Feingold gave the government the power to silence any TV station, any newspaper, anyone with the resources to actually reach large numbers of people, simply by declaring that they were not a "bona fide" news organization.

Maybe public opposition would have prevented a really extreme abuse. In the case of Fox News, the other media defended Fox. Maybe they put their commitment to free speech above partisanship. Maybe they realized that if they went along with helping a liberal president silence a conservative voice, after the next election we might have a conservative president who would use the precedent to silence a liberal voice, which might include themselves.

Clearly there was no great outcry over Citizens United's little film. Personally, I never even heard of it before they brought this court case, and I'm guessing most other Americans never did either. That's the whole point of censorship: you stop opposition by preventing people from hearing what you don't want them to know.

For now, the Supreme Court has put a stop to the worst abuses. But the president has already said, in his state of the union message, that he would fight the court on this.

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Jan 30, 2010

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