Citizens United v. The Federal Election Commission (a.k.a. “The Hillary Movie Case”) began as a challenge to the distribution of a conservative interest group’s documentary denouncing Hillary Clinton during her presidential election campaign. Because the documentary was funded with corporate money, the FEC claimed authority to prevent its distribution under the “McCain-Feingold” Bipartisan Campaign Reform Act of 2002 (which limits corporate expenditures nationwide on political campaign messaging transmitted via broadcast, satellite or cable TV). About half of the states also have laws limiting corporate political campaign spending.
A while back, a federal district court ruled in Citizens United that the corporate-funded documentary was political speech prohibited by McCain-Feingold. The Supreme Court agreed to hear an appeal of the case, and heard oral arguments on the district court’s narrow ruling. Then came the surprise: a re-hearing was requested by the Justices, asking the parties to argue whether or not McCain-Feingold and the various state restrictions violate First Amendment free speech. That oral argument happens today.
I watched an excellent debate on these issues on Bill Moyers’ Journal the other night. The transcript is here, or you can watch it. Trevor Potter, an attorney who has filed a friend-of-the-court brief defending the McCain-Feingold legislation observed that oil giant Exxon Mobil, through its political action committee (which accumulates funds through voluntary contributions of shareholders, employees and management) spent about 900 thousand dollars in the last election cycle under the restrictions imposed by current laws. But the company made 45 billion* dollars net profit last year. If even a fraction of that money could be tapped for political campaigns, the megaphone given to such entities would be huge beyond compare.
What if a candidate was going to take positions Exxon Mobil didn’t like, perhaps strongly advocating alternative energy over oil, emphasizing measures against global warming, or increased taxation on oil companies? Exxon could threaten to drown such a candidate in a deluge of attack ads and unlimited funding for their opponent. Candidates not willing to toe the corporate line could be deterred from running.
Potter argues that by law, vast economic power has been given to corporations – power not available to individuals – but it was never intended for corporations to engage in unregulated, unlimited political speech. A corporation’s sole purpose is to maximize profit. It cannot vote, it is not among the constituents represented by elected officials. The First Amendment protects the free speech of PEOPLE, not of these creatures of statute we call corporations.
Noted First Amendment lawyer Floyd Abrams responded with a broad defense of free speech:
And why are we limiting free speech? If the movie had been funded in a different way, if the funds had come from different sources … then it would be protected. But because the funding came from a corporation. Because of that, we can make it a crime to put the movie out. That I think is an unacceptable articulation of not only what the First Amendment has meant. But what it ought to mean, as well. We should not make technical distinctions about the degree of First Amendment free speech rights, depending on the nature of the entity that engages in the speech.
If a company wants to speak out beyond an issue. If they want to condemn a Senator who is opposing legislation that has an impact on the company’s interest, economic or otherwise to me it’s just anathema to the notion of free speech to say, “Well, you have to understand it’s a company. Their funding is different.” That’s not the way we ought to go about deciding the limits of free speech.
Check the transcript for the entirety of the discussion. I’ll try to link a report on the oral arguments taking place today. I agree with Potter’s argument that corporations aren’t people, and their “speech” should be regulated. They have a huge advantage over individuals in amassing funds – we have given them those preferences in a careful balancing of our societal interests, of which economic prosperity is one part. To suddenly allow corporations to also dominate the political money scene – when their interest is not societal betterment but solely profit maximization – would have a negative long term impact on the people of our nation.
*Correction: This article originally stated Exxonmobil’s 2008 net profit incorrectly as $85 billion. Is there really much difference?