Balancing Big Money and Free Speech
(Photos by Robin Holland)
This week on the JOURNAL, Bill Moyers spoke with two prominent legal experts about an important case regarding campaign finance restrictions and free speech that the Supreme Court will hear in a special session on September 9th.
The case, Citizens United v. Federal Election Commission, concerns a political film, HILLARY: THE MOVIE, that criticized Hillary Clinton during last year’s bruising race for the Presidency. The conservative group Citizens United had planned to make the film available through on-demand cable and advertise it on television but, because the group had accepted contributions from businesses, the Federal Election Commission ruled that such distribution would violate campaign finance laws that ban the use of corporate money to advocate directly for or against political candidates.
Citizens United challenged the Federal Election Commission with a lawsuit that reached the Supreme Court in March. After hearing arguments, the Court took the unusual step of requesting that the case be re-argued at the special session next week. Many observers fear that the Supreme Court will declare unconstitutional many of the laws that aim to prevent corporations and unions from using their vast funds to influence political campaigns.
Floyd Abrams, a well-known progressive First Amendment lawyer, will argue before the Court against the current restrictions on corporations and unions. He said:
“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 members urging them to vote for Franklin Roosevelt...’ That’s what I’m saying now... It’s all very well just to characterize this and diminish the problem by calling it just spending a lot of money. It’s more than that –– it is participating in the political process, it is speaking out, it is being heard... The First Amendment is not just the property of the press. The press deserves the broadest protection, but so do all other speakers... We should not make technical distinctions about the degree of First Amendment speech rights, depending on the nature of the entity that engages in the speech –– we [would] then go down the road to start defining press entities which will get the protection [and] speech entities which will not get the protection, and I don’t think that’s a place we want to be.”
Trevor Potter, former Chairman with the Federal Election Commission and General Counsel of John McCain’s 2000 and 2008 Presidential campaigns, has submitted a legal brief in support of existing campaign finance laws. He said:
“The Supreme Court has turned [this] into a case about whether 100 years of American tradition of regulating the speech of for-profit corporations in elections should be changed... That tradition [says] that individuals speak and vote and are citizens, and corporations have a different status and ought to be focused on the economic marketplace and not the political marketplace... Everybody has the ability to participate in the political process, meaning the election or defeat of candidates, except the for-profit corporations using shareholders’ treasury funds. That, it seems to me, is an appropriately narrow exemption given whose money that is, the shareholders’... [It’s a] dangerous and novel idea [that] we should change what has worked, what has been held constitutional, and go to a system when we have no idea what the effect will be. Based on what we can see, and have seen in the past, [it] could have some really bad effects on our democracy.”
What do you think?