September 4, 2009
BILL MOYERS: Welcome to The Journal. The envelope, please. And the winner for Most Influential Motion Picture in American Politics is "Hillary: The Movie." A no-holds-barred attack that the producers intended for viewing during her campaign for President.
MALE VOICE: Vindictive.
ANN COULTER: Mendacious. Venial. Sneaky.
MALE VOICE: Idealogical. Intolerant
ANN COULTER: Liar is a good one.
MARK LEVIN: Scares the hell out of me.
ANN COULTER: Looks good in pantsuit.
BILL MOYERS: Never heard of it? That's not surprising. Very few people saw it in the first place. But "Hillary: The Movie" may prove to have an impact on the political scene greater than even the producers could have dreamed. That's because it got tied up in a legal battle. A very complex legal battle over federal laws regulating certain aspects of corporate union and special interest funding for political speech in elections.
The film was created by a conservative group called Citizens United. They wanted to use OnDemand television to distribute "Hillary: The Movie" and to buy commercials promoting it. But because the film was partially financed by corporate sponsors, the federal election said no, it would violate the 2002 Bipartisan Campaign Reform Act, also known as the McCain-Feingold which restricts the use of corporate money directly for or against candidates.
Citizens United appealed the case all the way to the Supreme Court, where it was first heard back in March. But the Court did an unusual thing: it asked for more time and ordered new hearings and new arguments for next Wednesday, September 9th. The reason for this special hearing is to more broadly consider the Constitutionality of McCain-Feingold and campaign finance reform in general, whether it denies a corporation the First Amendment right of free speech.
So this obscure little piece of propaganda has become the means by which the court could decide to erase the legal distinction between corporations and individuals. If that happens, some people say, a whole new flood of money will wash over politics increasing dramatically the power of corporations at the expense of democracy.
One of those most concerned about the prospect of overturning limits on corporate speech is a former chair of the Federal Election Commission you will meet later in the broadcast. But with me now is one of the lawyers who will actually argue the case for overturning those limits next week before the Supreme Court.
Floyd Abrams is an ardent and vocal defender of the free speech who's argued many landmark First Amendment cases before the Supreme Court. In 1971 he was part of the legal team that defended "The New York Times" for daring to publish the Pentagon Papers. Those were the classified documents that reveal how the United States had secretly escalated the war in Vietnam. A long time partner in the law firm of Cahill Gordon & Reindel, he is also a visiting professor at Columbia University's Graduate School of Journalism and the author of this book, "Speaking Freely."
Floyd Abrams, welcome to "The Journal."
FLOYD ABRAMS: Thank you, Bill.
BILL MOYERS: You only have ten minutes next Wednesday to make your case before the Supreme Court. What's the essence, in layman's language, of the case you'll make?
FLOYD ABRAMS: Well, I guess most of all that a motion picture made about a candidate for president can be criminal simply because it is shown in the middle of a campaign and is partially funded by corporate money is just so antithetical to my notion of the First Amendment and I'm going to try to persuade the Supreme Court that, too.
BILL MOYERS: But isn't that one of those fine lines the court can draw on a narrow procedure without opening the big Constitutional questions of free speech, corporations and all of that?
FLOYD ABRAMS: Well, they could find some very narrow way to do this. But I think the real policy question is whether they should, or whether, as people like me think, the government ought to get out of the business of sort of rationing free speech when unions and corporations are involved.
There was a time back in the 1940s and 1950s when it was the liberals who were the ones saying, "Don't go after the unions. They have a free speech right to put out pamphlets and the like to their members urging them to vote for Franklin Roosevelt." Well that's what I'm saying now. And I think they were right then. I think Harry Truman was right to veto the Taft-Hartley Law which contained provisions like this. And I hope to participate in persuading the Supreme Court of that.
BILL MOYERS: Of course but like so much of the press has been writing in the last few weeks. This comes down to a really fundamental question about the power of corporations to use their deep pockets. So my question is, what's wrong with trying to place some limits on from using their huge resources to effect political election?
FLOYD ABRAMS: Look, I don't think there's anything wrong with putting some limits on contributions. We-- we have that, and that's not in this case. Question here is to what extent, if at all, can unions and corporations spend their money to put ads on or to speak out themselves in their own name about political matters, including even who to vote for? I don't think that we should make a distinction on First Amendment grounds in terms of who's speaking. I think that whether the speaker is an individual or an issue group or a union or a corporation that if anything, the public is served, not disserved, by having more speech.
BILL MOYERS: But more speech comes from more money. It's not free speech it's--
FLOYD ABRAMS: Well--
BILL MOYERS: --speech purchased with, as I said, the pockets of-- you know, Floyd, corporations have such powerful legal support for doing what they want to do in the economic marketplace. Doesn't it seem that there should be some restrictions on what they do in the political marketplace, lest they unbalance the playing field?
FLOYD ABRAMS: I don't think you want to put any of those limits on their speech. If you think they're too big, you can deal with the antitrust laws, you can try to break them up, you can keep them from getting larger or more powerful. But the idea of saying, "Because you're big and powerful, we're going to cut back or indeed end your right to take a position as a corporation, as a union, not just on issues but on candidates," seems to me antithetical to the whole notion that we generally believe in. In terms of allowing speech from the widest range of entities. I mean, we allow pornographers to have their awful say. And people like me, you know take a deep breath and say, "Yeah, we have to let that happen, too."
BILL MOYERS: Well we do set some limits on free speech in this country.
FLOYD ABRAMS: Sure we do.
BILL MOYERS: The Hatch Act prohibits federal employees from saying and doing certain things. Members of the military can't speak freely. So there is a precedent for saying, well, yes, free speech is a wonderful thing. And as you know, I believe it is. But in this case, your opponents are arguing that these powerful corporations can buy much more free speech than you and I can afford.
FLOYD ABRAMS: Well, powerful people, individuals, can buy more than we can buy and the Supreme Court's already said that Congress can't touch that. I mean, we're going to have that. But it seems to me that we get into trouble when we start saying, "It's a bad idea and we ought to start treating, or continue treating corporations and unions like people in the military or the government who have some special responsibility of silence, lest they not be able to do their job."
BILL MOYERS: But aren't you, in effect, with this case, with your argument, attempting to erase the difference between a corporation and an individual?
FLOYD ABRAMS: Well that difference is not one which the law generally recognizes we don't say, "Because it's a corporation it can't speak." In fact, we say the opposite. We say we don't distinguish between corporations and people, and unions and people. When folks get together and form a union, or when people invest in a corporation, there's no reason, in my view, why we should have different rules for them and for their institutions in terms of their right to speak.
BILL MOYERS: But there is a difference between AIG, and the ordinary taxpayer who has no recourse when that massed power is brought to bear on public policy and elections.
FLOYD ABRAMS: That is one of the critical issues the Supreme Court will indeed be focusing on because one of the cases that they're looking at says just what you said. People like me say, "Look, 90 percent of corporations don't even have shareholders." This is a statute which cuts across all corporations, all unions. If one wanted to start saying, you know, "Corporations over a certain size can't spend more than a certain amount" I might listen to that even though--
BILL MOYERS: So you would accept some restriction on corporations?
FLOYD ABRAMS: I would seriously consider it. But the idea of an across-the-board ban which includes the ACLU and the NRA., by the way, both of whom are on the same side in this strange case seems to me just off limits.
BILL MOYERS: So you are recognizing that a corporation for certain political purposes is not the same as an individual?
FLOYD ABRAMS: Well, look. I think it's the same. What I'm saying, though, is that there are situations in our law where we recognize some cutting into what maybe First Amendment types might think is their absolute right to speak. What I'm saying is that here we have a sort of blunderbuss statute which not only cuts in, but bars any corporate or union, political position statements.
And bars, as this case shows, even organizations that get a little bit of money from putting out a movie. You can't be for a body of law that says that a movie about Hillary Clinton in the middle of a political campaign is a crime. I don't believe it.
BILL MOYERS: Well Elena Kagan, the Solicitor General of the United States filed a brief on the other side of this issue. She'll argue that when a corporate executive decides to spend corporate money on a campaign or an ad that in fact he's violating the rights of the shareholders and the employees. Because he doesn't know that they support that particular position.
FLOYD ABRAMS: Well, look. If a corporation goes off half-cocked and starts endorsing candidates and it doesn't really have anything to do with the good of the corporation, believe me, we'll have lawyers in there. We'll have lawsuits. There are all sorts of ways to protect shareholders without limiting speech. And what we usually do, and what I think we should always do, is to try to find ways to avoid these problems without cutting out speech. So if corporations are too big or too powerful, deal with that. Don't deal with their speech. And that is the general way we've developed First Amendment law in this country is not to go after speech, but to go after the underlying problems when we choose to do so.
BILL MOYERS: But even if there is such a thing as corporate speech, are you saying that we have too little of it in America?
FLOYD ABRAMS: Actually, yes. I don't think that corporations that are now barred, and unions that are now barred from speaking out to voice their views on social policy issues to the extent they also deal with candidates, should be barred from doing it. Yeah. So I am saying that we have too little speech which is lawful in this area.
BILL MOYERS: I truly don't understand this. Because as you know, corporations can set up public-- political action committees to spend money on campaigns. I brought some facts. And there were about 3 thousand corporate pacts registered with the Federal Election Commission in 2007 and 2008. And they spend more than 500 million dollars for political purposes. What's more, in the years between the court's last decision on campaign finance rules, that would be 2007, and the federal election that followed in 2008, corporations and unions spent more than 100 million dollars on genuine issue ads. I mean, I cannot accept the argument that we don't have enough corporate speech.
FLOYD ABRAMS: Well, I think you see it in this case. This very case is a paradigmatic example of how our law, as it currently exists, limits free speech, because of any corporate or union funding, of the sort of movies. And it could be books, as the Solicitor General's office conceded in the last argument in the Supreme Court. Imagine it. We really live in a society where, because a corporation is doing funding or a union is doing funding, you can't have a book criticizing the President? Hillary Clinton? My client, Mitch McConnell? I don't believe it.
BILL MOYERS: But if you accept that, you are saying, then, that corporations have an unequal advantage in the marketplace. Because, you know, we do ration free speech as we do ration healthcare because it takes money to buy both.
FLOYD ABRAMS: Well, we don't do it. We--
BILL MOYERS: We as a society.
FLOYD ABRAMS: --but the State doesn't do it, or shouldn't do it. Now, there are equality problems in our society. I don't think we should deal that, and so far the Supreme Court has said they don't think we can deal with that by rationing speech. Now, on the ground are you right that wealthy people wind up with more of an opportunity to have more of an impact? That's true.
BILL MOYERS: And wealthy--
FLOYD ABRAMS: You want to deal with--
BILL MOYERS: --and if you treat a corporation as an individual--
FLOYD ABRAMS: --but--
BILL MOYERS: --with the same rights as an individual.
FLOYD ABRAMS: --but if you want to deal with that problem, you deal with it economically. You deal with it through the antitrust laws. You don't deal with it by saying, you know, "We're really concerned that corporate speech, union speech, may not be a good thing for the country." We don't talk that way about free speech--
BILL MOYERS: Nobody's saying that.
FLOYD ABRAMS: --in any other area.
BILL MOYERS: Nobody saying it's not a good thing. They're saying that for the sake of the public interest, for democracy, that powerful, muscular, rich corporations should not have an unfair advantage.
FLOYD ABRAMS: Well, I don't think it's an unfair advantage. It's an advantage. Anyone that has money has an advantage. Anyone that has more power has an advantage. But it is alien to our system and our history to say that because of that, we can deal with that issue, that problem even, by saying, "Therefore, we're not going to let you guys really speak because we really think it would distort the system." I think that puts the government in the very position that all of us who care about the First Amendment and free speech ought to be very dubious about.
BILL MOYERS: Floyd, hold it right there. We're going to bring in Trevor Potter, who takes a different view of this issue.
