Issue Report: Corporate free speech

Do corps. have a right to free speech and to spend w/o limit in elections?

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), is a landmark 5-to-4 decision by the United States Supreme Court that corporate funding of independent political broadcasts in candidate elections cannot be limited, because doing so would be in noncompliance with the First Amendment. The decision resulted from the non-profit corporation Citizens United’s case before the court regarding whether the group’s film – Hillary: The Movie – could be considered a campaign advertisement under the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold Act, and whether subsequent restrictions under the law on such direct advertisement spending could be justified. The Court’s decision struck down a provision of the McCain-Feingold Act that banned for-profit and not-for-profit corporations and unions from broadcasting “electioneering communications” in the 30 days before a presidential primary and in the 60 days before the general elections. The decision also completely overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003). The decision upheld the requirements for disclaimer and disclosure by sponsors of advertisements, and the ban on direct contributions from corporations or unions to candidates, in part IV. The decision has been met with significant debate. Of particular note, was President Obama’s opposition in his January 24, 2010 State of the Union where he said: “Last 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. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps…” [1] These arguments and others are documented below.

Free speech: Does unlimited spending uphold free speech?

Does unlimited spending uphold free speech?

Supreme Court majority January 21, 2010 opinion on Citizens United vs Federal Election Commission

“Government may not suppress political speech based on the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”

Ban on direct corporate funding is ban on free speech

Supreme Court ruling on Citizens United vs Federal Election Commission

“441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation.”

Wrong to fine/jail corporate citizens for speech

Justice Anthony M. Kennedy

“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”[2]

Limits on corporate spending chill free speech

Supreme Court majority opinion on Citizens United vs Federal Election Commission

“because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled.”

First amendment protects companies AND non-profits, unions, etc

Ilya Shapiro. "When Individuals Form Corporations, They Don’t Lose Their Rights." CATO Institute. Feb 2, 2010

“The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

Limiting corp spending is slippery slope against free speech

Chief Justice Roberts said that limitations on an anti-Clinton movie called "Hillary

the Movie.” before the 2008 primary elections would lead to broader restrictions: “would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern.”[3]

Spending limits foster equal not free speech

Cato Institute researchers John Samples and Ilya Shapiro wrote that restrictions on advertising were based on the idea “that corporations had so much money that their spending would create vast inequalities in speech that would undermine democracy.” However, “to make campaign spending equal or nearly so, the government would have to force some people or groups to spend less than they wished. And equality of speech is inherently contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions of free speech.”[4

Limits on spending are limits on speech

Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court

“Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a ‘restriction on the amount of money a person or group can spend onpolitical communication during a campaign,’ that statute ‘necessarily reduces the quantity of expression by restrict-ing the number of issues discussed, the depth of their exploration, and the size of the audience reached.'”

Why limit speech of corporations, but not individuals?

Anthony Dick in The National Review wrote

“is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?” [5]

Free speech more important than fighting corporate interests

Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court

“The concurrence explained that any ‘undue influence’ generated by a speaker’s ‘large expen-ditures’ was outweighed ‘by the loss for democratic proc-esses resulting from the restrictions upon free and fullpublic discussion.’ Id., at 143. […] In United States v. Automobile Workers, 352 U. S. 567 (1957), […] The dissent concluded that deeming a particular group“too powerful” was not a ‘justificatio[n] for withholdingFirst Amendment rights from any group—labor or corpo-rate.’ Id., at 597.”

Govt has no authority to selectively offer free speech

Floyd Abrams, a well-known progressive First Amendment lawyer, argued for lifting restrictions on corporate speech/spending in elections in Citizens United vs Federal Election Commission: “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.”[6]

General statements in support of Citizens United

Citizens United, the group filing the lawsuit in the 2010 SCOTUS case

“Today’s U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process.”

Free speech does not apply equally to companies

"The Court's blow to democracy." New York Times Editorial. January 21, 2010

“The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations. […] Most wrongheaded of all [in the Supreme Court’s 2010 decision] is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.”

Corporations do not have rights like individuals

Lisa Gilbert. "In The Public Interest: Corporate Democracy - The Citizens United Opinion." Huffington Post. January 21st, 2010

“A corporation is not, nor has it ever been, a person with voting rights. Corporations cannot get married, they cannot die, and a corporation is not a part of “We the People.” The very idea that they can now channel their immense wealth to advocate directly for or against a federal candidate is abhorrent.”

Corporate spending doesn't count as "speech"

Free speech is protected under the Constitution, meaning anyone can say what they want. But, spending unlimited amounts of money to propagate a message, intimidate candidates, and sway elections is not protected. In other words, corporate speakers do have some free speech rights to develop an election ad (through such things as PACs), but not to then spend unlimited amounts of money to propagate their message.

Spending limits protect voter voices from being priced-out

Karen Finney. Democratic consultant and commentator; former spokesman for the Democratic National Committee, wrote in a January 24, 2010 Washington Post piece

“In a decision that supposedly ruled on the side of free speech, the court actually put a price tag on that speech. A price tag that could result in the voices of individual Americans being priced out of their ability to actually be heard, as millions of dollars from multinational corporations can now be spent to tip the scales in an American election.”[7]

Unlimited corporate spending kills small-donor candidates

Greg Palest. "Manchurian Candidates: Supreme Court allows China and others unlimited spending in US elections." OpEdNews. January 23rd, 2010

“Candidate Barack Obama was one sharp speaker, but he would not have been heard, and certainly would not have won, without the astonishing outpouring of donations from two million Americans. It was an unprecedented uprising-by-PayPal, overwhelming the old fat-cat sources of funding. […] Well, kiss that small-donor revolution goodbye. Under the Court’s new rules, progressive list serves won’t stand a chance against the resources of new ‘citizens’ such as CNOOC, the China National Offshore Oil Corporation.”

General statements against Citizens United ruling

Representative Alan Grayson, a Democrat, stated that it was “the worst Supreme Court decision since the Dred Scott case” and accused the court of opening the door to political bribery and corruption.[8]

Corps focus on profits, not eligible for rights

Tom Stites. "How corporations became persons." UU World

“Democracy expresses the collective consciences of citizens. However noble or flawed its message, this is how our nation’s moral voice is heard. […] Corporations express the collective investment goals of shareholders. The legal stricture known as fiduciary responsibility confines all but closely held corporations to this singular goal. By shutting off other values to focus solely on pursuit of profit in inherently amoral economic competition, corporations are by their nature amoral as well. Despite image-enhancing claims of corporate citizenship, they have no consciences to express, only earnings per share. They differ from people not only in form and size but, most importantly, in their fundamental character: People including corporate executives, employees, and shareholders—have inherent worth and dignity; corporations in and of themselves do not.”

Media: If media has free speech right, shouldn't corps as well?

If media has right to speak, why not other corps?

Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court

“The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. “We have consis-tently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Id., at 691 (SCALIA, J., dissenting)

Media has broader free speech rights than corporations

Jim Sleeper. "Corporate free speech? Since when?" Boston Globe. September 5, 2009

“Yes, “robust speech’’ must be protected even if it’s obnoxious, but no corporation – unless it’s a news-media company, whose business is to facilitate free speech – can be the kind of speaker or citizen the First Amendment’s framers intended to protect.”

Associations: Does unlimited spending foster right to speech in assoc.?

Corp. spending limits infringe free speech in assoc.

Justice Antonin Scalia stated that Justice John Paul Stevens dissent against the Citizens United ruling was “in splendid isolation from the text of the First Amendment. It never shows why ‘the freedom of speech’ that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.”[9]

Media speech implicates shareholders; no different with other companies

Supreme Court majority January 21, 2010 opinion on Citizens United vs Federal Election Commission

“3) The Government’s asserted interest in protecting share-holders from being compelled to fund corporate speech, like the anti-distortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time.”

PACs are insufficient enablers of organizational speech

Corporations are no form of free association/speech

The constitutional law scholar Laurence H. Tribe

“Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose.”[10]

Corporate spending in elections violates shareholder rights

Trevor Potter, former Chairman with the Federal Election Commission and General Counsel of John McCain’s 2000 and 2008 Presidential campaigns, submitted a legal brief in favor of limiting corporate spending: He said

“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’.”[11]

Democracy: What will the effect be on elections/democracy?

Corporate free speech enhances the public debate

Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court

“Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bel-lotti, 435 U. S., at 783)). The Court has thus rejected theargument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.” […] it is our law and our tradition that more speech, not less, is the governing rule.”

Voters can be trusted to judge corporate speech/messages

Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court

“When Government seeks to use its full power, includingthe criminal law, to command where a person may get hisor 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.”

Corporations have valuable perspectives to voice

Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court

“Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech ofall sorts, including the speech of candidates and elected officials.”

Corporate free speech helps check government power

"Corporate Free Speech." Republicans and Conservatives Archives. January 23, 2010

“It is understandable that there is opposition to this concept, particularly from those who have no conception of the corporate power of government. [Yet], I wholeheartedly support the Supreme court’s decision lifting limits of corporate free speech. We have a great national corporation able to speak freely on behalf of its desire for power. It would be suicidal for us to limit our responses to such a concentration of expression to a cacophany on individual voices or to eschew an effective tool by which many individuals can focus their voices into harmonious opposition.”

Shareholders will limit corp spending on elections

Richard A. Epstein. "Free speech for corporations. Undoing the progressive mindset." Forbes. September 1, 2009

“In other cases, corporations are subject to shareholder control and to popular disapproval that can translate into reduced sales if they inject themselves into controversial matters that don’t pertain to their business. Faced with these corporate realities and market constraints, why use the law to quiet their speech, which could add a distinctive perspective on many questions?”

Corp election spending limited by transparency laws

Kenneth Gross. Leads the political law practice at Skadden Arps; former associate general counsel of the Federal Election Commission. Wrote in a January 24, 2010 Washington Post piece[12]

“Also, many corporations have already signed on to transparency agreements regarding political spending. So, funding by publicly held corporations of groups trying to disguise their mission will be few and far between. This may not be the popular, prevailing view of the implications of the Citizens case — but it is likely to be at least the short-term reality.”[13]

Opposing election spending from corporations cancel each other out

Richard A. Epstein. "Free speech for corporations. Undoing the progressive mindset." Forbes. September 1, 2009

“it would be wrong to assume, as did Justices Marshall, O’Connor and Stevens, that corporations speak with a single voice on key issues. Often they line up the opposite sides of questions, so that their expenditures often cancel each other out.”

Citizens United decision does not allow spending on campaigns

Jon Witold Baran. "Stamped Toward Democracy." Washington Post. January 25, 2010

“Will corporations and unions be able to give money to candidates or political parties? No. Federal law, which regulates campaigns for president, the Senate and the House, prohibits such contributions. The ban was left untouched by the Supreme Court. Can corporations spend money in cahoots with candidates and political parties? No. The Supreme Court decision addressed only ‘independent expenditures,’ which are, by definition, ‘not coordinated with a candidate.’ Monies spent in collaboration with candidates or parties are treated as contributions — and are still banned.”

Tech makes limits on speech unrealistic

Supreme Court majority January 21, 2010 opinion on Citizens United vs Federal Election Commission

“3) The Government’s asserted interest in protecting share-holders from being compelled to fund corporate speech, like the anti-distortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time.”

Unlimited spending allows special interests to dominate elections

President Barack Obama called the Supreme Court's Citizens Union decision in his 2010 January State of the Union address

“With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. “[14]

Corporate free speech protects govt of/by/for people

Karen Finney. Democratic consultant and commentator; former spokesman for the Democratic National Committee, wrote in a January 24, 2010 Washington Post piece

“At the very moment Americans’ mistrust of big corporations, big government and large institutions has reached a fever pitch, the Supreme Court moved to replace a government of, for and by the people with a government that can be bought and paid for by just about any major corporation — from Exxon to Russian-owned Lukoil to China’s CPC Corp.”[15]

Citizens United illogically increases money in elections

Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor dissented from the majority ruling on Citizens United, arguing

“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”[16]

Citizens United ruling pretends corporate spending doesn't corrupt

The Christian Science Monitor wrote that the Court had declared, mockingly

“Roberts Court declares outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy.”[17]

Unlimited election spending will increases corruption

Richard L. Hasen, Professor of Law at Loyola Law School, found that the ruling “increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality”.

Unlimited spending lets corporations intimidate unwanted laws

Jody Grage, treasurer of the Green Party, stated “The decision […] cancels the idea that candidates run for public office to serve the public interest. The ruling will help block government measures to curb global warming, regulation of financial firms, health care reform, consumer rights, and all other protections for ‘We the People’ against corporate power.”[18]

Corporate spending used to fight election regulations

Justice John Paul Stevens said in January of 2010 in a dissenting opinion following the Supreme Court's 5-4 vote to allow unlimited corporate spending in elections

“cripple the ability of ordinary citizens, Congress and the states to adopt even limited measures to protect against corporate domination of the electoral process.”[19]

More spending in elections undermines public confidence

"A Bad Day for Democracy". The Christian Science Monitor. January 22, 2010

“this potential spending will create even greater fear of political reprisal for unpopular votes, expand conflicts of interest, and further undermine the public’s confidence in government’s ability to act in the public interest.”

Unlimited corporate spending in elections threatens democracy

Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor joined in dissenting from the Citizen United ruling, arguing that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.”[20]

Candidate intimidation: Does allow for candidate intimidation?

Unlimited spending lets candidates focus on message over fundraising.

One of the main problems in elections is that candidates are typically strapped for cash, and often must spend the majority of their time fundraising, instead of focusing on their message. Unlimited corporate spending, in addition to unlimited political party spending and individual donorship would allow candidates to focus on their message, the changes they want to make, their plans for governing or voting while in office, and on informing the general public about these plans so that they can make a more informed decision about their vote.

Unlimited spending breaks stranglehold of incumbents

Capital University Law School professor Bradley A. Smith, a former chair of the Federal Election Commission and a long-term campaign finance reform opponent, wrote that the major opponents of political free speech are “incumbent politicians, shocked by the apparent tectonic shift in politics of late” who “are keen to maintain a chokehold on such speech.” Empowering “small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group—to make its voice heard” frightens them because it breaks their damaging stranglehold on existing seats, which exist largely because they are able to raise more money than prospective up-start rivals.

Unlimited spending allows corps to intimidate candidates

Senator Russell Feingold (D-Wis), co-author of the McCain-Feingold campaign finance legislation, said to the Washington Post in January of 2010

“Oil companies, with virtually no harm to their balance sheets, can now try to “take out” members of Congress who don’t toe their company line on energy policy. Foreign-owned companies ¿ even those owned and controlled by other governments ¿ are free to underwrite the candidates of their choice.”[21]

Unlimited corporate spending forces candidates to fundraise more

"A Bad Day for Democracy". The Christian Science Monitor. January 22, 2010

“The fear factor of unlimited corporate political spending this decision creates will now fuel a rapidly escalating fundraising arms race in Congress. With big firms now free to spend jaw-dropping sums to oppose or intimidate them, elected officials will feel compelled to spend more and more of their time raising money, thereby further distracting Congress from the pressing issues of the day.”

Unlimited spending engenders corporate-sponsored candidates

Anna Burger. Secretary-treasurer of the Service Employees International Union, wrote in a January 24, 2010 piece

“There can be no doubt: The voice of everyday working Americans in the political process will be muted. How can they compete for airtime with the deep pockets of multinational corporations? The court’s decision has said loud and clear that Mr. Smith has no business in Washington — that seat’s been sponsored by Wal-Mart.”[22]

Corporate spending in elections increases attack ads

David Kirkpatrick. "Lobbyists Get Potent Weapon in Campaign Financing". New York Times. January 22, 2010

“It is expected to unleash a torrent of attack advertisements from outside groups aiming to sway voters, without any candidate having to take the criticism for dirty campaigning.”

Unions/advocacy: Does unlimited spending favor unions and advocacy groups too?

Spending limits harm speech of advocacy groups & unions

Chicago Tribune editorial board member Steve Chapman wrote

“If corporate advocacy may be forbidden as it was under the law in question, it’s not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy.”[23]

Citizens United frees unions too, but corps are richer

While it is true that the Citizens United vs the Federal Election Commission does free non-profits and unions to spend freely, just as it does for corporations, the difference of course is that corporations (particularly the titans like big-oil companies Exxon Mobil and the big financial firms like Goldman Sachs) have far, far more money. Unions and advocacy groups are already maxing out on the spending front, so freeing them up won’t result in much if any of an increase in their spending. Major corporations, however, will be able to increase their spending dramatically as a result of this ruling. It is not fair to say, therefore, that the ruling benefits both groups. It clearly favors corporations.

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