Citizens United v. FEC – The good, the bad and the ugly
In my first post about the Supreme Court’s decision in Citizens United v. FEC, I gave my readers the facts of the case and then I summarized the Court’s opinion.
In this post, close scrutiny is given to parts of the Court’s opinion which I consider to be good, bad and ugly.
The Good
In Citizens United, the Supreme Court left intact the disclaimer and disclosure provisions of section 311 of the Bipartisan Campaign Reform Act (BCRA). Under 311, televised electioneering communications funded by anyone other than a candidate must include a disclaimer that “___ is responsible for the content of this advertising.” That statement must be made in a clearly spoken manner and displayed on the screen in a clearly readable manner for at least 4 seconds. It must state that the communication is not authorized by the candidate or candidate’s committee. It must also display the name and address (or website address) of the person or group that funded the advertisement.
Under BCRA section 201, any person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the FEC. That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of certain contributors.
Citizens United challenged the disclaimer and disclosure provisions of the BCRA as unconstitutional. Citizens United also argued that by forcing the corporation to devote 4 seconds of each advertisement to a spoken disclaimer, the statute is decreasing both the quantity and effectiveness of the corporation’s speech.
The Supreme Court rejected both arguments. The Court held that disclosure is a less restrictive alternative to more comprehensive regulations of speech. The Court also noted that the disclaimers required by section 311 provide the electorate with information to insure that the voters are fully informed about who is speaking about the candidate. The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages.
The Bad
The Citizens United Court left intact limits on direct contributions to politicians. The Court recognized that large contributions could be given to secure a political quid pro quo and there is a sufficiently important governmental interest in preventing corruption and the appearance of corruption, so it upheld limits on direct contributions. However, the Court did not extend this reasoning to expenditures for ads and other speech. “Independent expenditures, including those made by corporations do not give rise to corruption or the appearance of corruption,” the Court stated. Am I missing something here? So there is corruption when a politician does a political favor for a corporation that made a contribution to his campaign, but there is no corruption when a politician does a political favor for a corporation that spent millions on an ad campaign which endorsed that politician? Go figure!
The Ugly
During arguments for Citizens United, Justices Ruth Bader Ginsburg and John Paul Stevens asked whether foreign interests would be able to funnel money into American elections through their U.S. subsidiaries if the court struck down 441b. One of the attorneys for Citizens United replied, “I would not rule that out.”
In its Opinion, the Court side-stepped the issue and refused to make a ruling on whether foreign corporations would be able to influence our political process by funding election ads. Instead, the Court stated that there is no need to answer the question, and referred to the fact that 2 U.S.C 441(e) bans contributions and expenditures by foreign nationals. This may be true, but the operative word in 441e is “nationals”. How can this Court say that the question of whether foreign organizations can influence our Nation’s political process is best answered by 441e when 441e applies only to foreign nationals or individuals, and not corporations? This creates a loophole for foreign corporations. It will be interesting to see what foreign corporations will do to capitalize on this blunder by the Court.
Related post:
Citizens United v. FEC – American jurisprudence at its best or partisanship?