Speech and expression

  • January 21, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Paul S. Ryan, is FEC Program Director and Associate Legal Counsel at The Campaign Legal Center.
    One year ago, Justice Kennedy wrote in Citizens United, on behalf of eight of the Court's nine Justices: "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today." Nor, sadly, did it exist after that day.

    Justice Kennedy offered these words as solace to those who feared the consequences of the Court's decision to unleash of millions of corporate dollars into our political process. He continued: "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 messages."

    Justice Kennedy claimed to be striking a balance. Corporations get unrestrained political speech, while the electorate gets effective disclosure of who is behind that speech.

    Unfortunately, the electorate got the short end of the stick. Corporations spent unknown millions in 2010 elections, but the "campaign finance system that pairs corporate independent expenditures with effective disclosure" simply does not exist.

    Though Congress, through the enactment of the Bipartisan Campaign Reform Act of 2002 (BCRA), dramatically improved campaign finance disclosure, the Federal Election Commission (FEC) has since eviscerated the law.

  • January 21, 2011

    Four out of five Americans support passage of a constitutional amendment to overturn the Citizens United v. FEC decision, according to a survey conducted by Hart Research Associates on behalf of Free Speech for People.

    The survey, released on the eve of the controversial campaign finance decision's one-year anniversary, found that Americans have low confidence in the current system for regulating corporations, and that opposition to the Citizens United decision "crosses all party lines."

    Free Speech for People is engaging in a campaign to raise awareness about the impact of Citizens United and urge passage of a constitutional amendment to reverse its effects. In October, the group distributed a letter signed by 50 law professors, urging members of Congress to advance a constitutional amendment. The letter states:

    Before Citizens United, a long line of Supreme Court cases, backed by two centuries of Constitutional jurisprudence and the basic truth that corporations are not people but creations of state law, had correctly ruled that Congress and the States may regulate corporate political expenditures not because of the type of speech or political goals sought by corporations but because of the very nature of the corporate entity itself.

  • January 21, 2011
    Guest Post

    This post is part of an ACSblog online symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Richard L. Hasen, is a Visiting Professor at UC Irvine School of Law and author of the Election Law Blog.
    When the Supreme Court decided Citizens United v. FEC, arguably the most controversial decision of the Court since Bush v. Gore, observers offered a variety of predictions about what the post-Citizens United world allowing unlimited corporate and labor union spending in candidate elections would look like. Some thought corporations would be in a position to buy election results, or, as President Obama said, to "drown out the voices of ordinary Americans." Others thought the decision would not have much impact, because earlier Supreme Court decisions, including the Court's opinion in FEC v. Wisconsin Right to Life, had already made it much easier for corporations and labor unions to influence the outcome of candidate elections. Early empirical studies are still sorting out the effect of the case on the 2010 elections, and there's much speculation about how the case will play out in the 2012 presidential elections.

    Justice Kennedy, author of the majority opinion in Citizens United, offered his own vision of the post-CU world within the case itself. He envisioned free exchange of ideas in a democratic marketplace, coupled with complete and instantaneous disclosure of campaign contributions and expenditures over the Internet: "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today...With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters."

    Whether Justice Kennedy believed that existing campaign finance disclosure law would provide for this free and instantaneous exchange of information about campaign money or whether he was instead advocating that Congress adopt such a system is unclear. What is clear, however, is that Citizens United has not only unleashed new money into the election process; actions by lower courts and the FEC, combined with an inadequate disclosure regime, have led to a system of largely undisclosed corporate, union, and individual campaign contributions flooding into elections.

  • January 13, 2011
    BookTalk
    Politics, Taxes, and the Pulpit
    Provocative First Amendment Conflicts:
    By: 
    Nina J. Crimm and Laurence H. Winer

    By Nina J. Crimm, Professor of Law, St. John's University School of Law, and Laurence H. Winer, Professor of Law, Sandra Day O'Connor College of Law at Arizona State University.
    The Supreme Court's highly controversial decision last year in Citizens United v. FEC held unconstitutional federal campaign finance restrictions on corporations' political campaign speech. This result creates a strikingly anomalous situation. Analogous federal tax law that absolutely precludes political campaign speech by many nonprofit entities becomes all the more singular and problematic, particularly for houses of worship.

    Many houses of worship and their religious leaders increasingly promote a highly vocal and influential role for religion in electoral politics. They address a plethora of emotionally charged moral and political issues for which religious beliefs and spiritual commitments are central for many people. Moreover, invoking spiritual mandates, many clergy go further to identify and comment on political candidates' positions as to these issues, either implicitly or explicitly endorsing or opposing candidates for political office.

    These religious voices in the political and public spheres are applauded by some people but are deeply troublesome to others. One easily can doubt the wisdom of houses of worship becoming directly involved in electoral politics and, under an ingrained notion of the primacy of separation of church and state in America, doubt even more the propriety of such involvement. On the other hand the Supreme Court often extends the greatest protection to political speech. So, surely as a constitutional matter, one might think that political campaign speech from any source, including spiritual leaders in their capacity as representatives of houses of worship, especially if religiously compelled or motivated, at least must be tolerated if not always welcomed.

    Yet, those who are troubled by such political participation by clergy point to tax advantages conferred on houses of worship, as section 501(c)(3) nonprofit organizations (along with other types of 501(c)(3) secular and religious entities), and their donors. Not only are houses of worship granted tax-exempt status under federal tax laws, but they alone are presumed to qualify automatically for the tax benefit, and their tax-itemizing donors are permitted to deduct contributions. These favorable tax treatments, generally considered the economic equivalent of government subsidies, are coercively and controversially conditioned by the tax code on spiritual leaders compromising their religious principles and entirely refraining from otherwise constitutionally protected political campaign speech. Taxpayers, the theory goes, should not be required to subsidize such partisan activity, especially if it is religiously based. But this absolute proscription attaches whether or not religious leaders' political campaign speech actually is financed by tax-exempt dollars, and regardless of whether the exhortations are confined to house of worship facilities during formal sermons, Bible, Torah, and Qur'an studies, and personal counseling sessions with adherents or are made in mass media publications or through such public domains as the Internet or Twitter.

  • January 3, 2011

    Current law and administration policy on providing "material support" to groups labeled terrorist organizations is leading to perverse results in which "the right to make profits is more sacrosanct than the right to petition for peace," writes Georgetown law professor David Cole in The New York Times.

    Just last month, Cole points out, a group of politicians that included former New York mayor Rudolph Giuliani and former attorney general Michael Mukasey, may have committed a crime when they told a group of Iranian exiles in Paris that President Barack Obama should remove the opposition group Mujaheddin-e Khalq from its list of foreign terrorist organizations.

    What was once considered free speech may now be criminal, in the wake of the Supreme Court's decision last year in Holder v. Humanitarian Law Project, holding that it is a crime not only to provide any "material support" to a group labeled a "foreign terrorist organization," but also to engage in speech coordinated with a foreign terrorist group for its benefit, Cole explains.

    He continues:

    The government has similarly argued that providing legitimate humanitarian aid to victims of war or natural disasters is a crime if provided to or coordinated with a group labeled as a "foreign terrorist organization" - even if there is no other way to get the aid to the region in need. Yet The Times recently reported that the Treasury Department, under a provision ostensibly intended for humanitarian aid, was secretly granting licenses to American businesses to sell billions of dollars worth of food and goods to the very countries we have blockaded for their support of terrorism. Some of the "humanitarian aid" exempted? Cigarettes, popcorn and chewing gum.

    Cole calls for reform of material support laws that would protect the provision of "legitimate" humanitarian aid, and make clear that "advocating only lawful, nonviolent activities" is not a crime and that "corporate interests in making profits from cigarettes are not sufficient to warrant exemptions from sanctions on state sponsors of terrorism."

    "Genuine humanitarian aid and free speech can and should be preserved without undermining our interests in security," he writes.

    Cole, who is litigating several other cases involving "material support" law, explained in a recent ACSBlog guest post how two other cases pending before federal appeals courts could "dramatically extend the already expansive sweep of the ‘material support' laws."