Previewing the Decision: Citizens United v. FEC

November 30, 2009
Guest Post

By Laurence Gold, a lawyer with Lichtman, Trister & Ross, PLLC in Washington, DC

Today or soon the Supreme Court will decide Citizens United v. FEC and, possibly, hold that the government cannot prohibit nonprofit advocacy corporations - and perhaps also business corporations and unions - from using their regular treasury accounts (and not just their individual-funded federal PACs) for explicit "vote-for" and "defeat"-type electoral messages to the general public. If the Court does that, then no person or group - except, possibly, foreign nationals - could be precluded from undertaking so-called "express advocacy" "independent expenditures" about federal or state candidates.

Much commentary on the case overstates how significantly that holding - overruling the Court's 1990 Austin v. Michigan Chamber of Commerce decision - would change constitutional law. The First Amendment already empowers businesses, nonprofit corporations, unions and other groups to publicly convey all but the most explicit election-influencing messages, and further protects their issue advocacy and lobbying. And, as a practical matter, corporations, unions and other groups only episodically exercise their substantial electoral communications rights, due to budgetary pressures, institutional culture, averseness to controversy, federal tax disincentives and sensitivity to shareholder, member and public opinion. Those constraints won't disappear.

Progressives would do well to pay equal attention to what might happen if the Government wins this case. Rather then simply trying to preserve the status quo, the FEC and its amici - groups that lobby for more campaign finance regulation - are urging the Court to dramatically reduce First Amendment protections for independent speech. They argue that independent political speech can be outlawed on the theory that it "corrupts" candidates and officeholders because it is intended to "curry favor" with them and might cause them to "feel indebted." But the Court has consistently rejected that as a rationale to restrict speech, as distinct from political contributions that plainly risk a quid pro quo - the purchase of official favors - and only indirectly implicate free-speech interests.

It would be distasteful enough if politicians' "feelings" could trump group free-speech rights in the electoral sphere. But it is hard to discern how even non-electoral speech that discusses public officials could avoid the same fate. Although the Government has backed off from its previous contentions in Citizens United that federal election law can ban books, its First Amendment posture in the case remains aggressively censorial.

Citizens United also implicates important First Amendment questions about the relative electoral speech rights of different kinds of groups, but public commentary on the case has all but ignored them. Since the union-busting Taft-Hartley Act of 1947, federal campaign finance law has largely equated unions and other nonprofits with business corporations, restricting them all in much the same ways. This has hardly created a "level playing field." Under current law, billionaires can make unlimited express-advocacy independent expenditures using wealth transferred from their businesses. And, despite their own commercial interests, huge media corporations - including those owned and controlled by non-media corporations - are exempt from political-speech restrictions, yet they profoundly influence public perceptions of candidates and officeholders and routinely editorialize explicitly for their favored candidates. Progressives should reject these disparities and seek comparably unfettered electoral-advocacy rights for unions and other nonprofits at least.

The Government defends Austin in part by arguing that shareholders need protection from corporate political spending that they do not authorize. Perhaps the Court will accept that as a constitutionally sufficient rationale to ban business express advocacy, but it has no application to nonprofits, which lack shareholders and are often membership-controlled. Austin itself explicitly acknowledged that its shareholder-protection rationale does not apply to unions, which - unlike most other kinds of groups - are always democratically run by their members, and whose represented workers always may forgo financing union political activities and lobbying.

In Citizens United, however, the government endorses speech restrictions on unions in order to prevent "the use of compulsory union dues for political purposes" - a startling echo of National Right to Work Committee propaganda. Justice Ruth Bader Ginsburg disputed this equation of union members with shareholders during September's Citizens United argument, prompting Solicitor General Elena Kagan to admit that Justice Ginsburg was "right about that." But Ms. Kagan insisted that the "anti-corruption" rationale justifies criminalizing independent union political speech.

Maintaining restrictions on business express advocacy instead might require revisiting some very old constitutional doctrines that treat business corporations are "persons" with constitutional rights. Justice Sonia Sotomayor suggested as much at the argument, but that prospect seems remote. Meanwhile, imposing speech restrictions on businesses in order to enhance other political voices has been a constitutional non-starter since Buckley v. Valeo in 1976; even Austin rejected that notion, and the Government eschews it in Citizens United.

Plainly, then, the Court's rationale in Citizens United for upholding or overruling Austin (if it doesn't duck it entirely, another possibility) will be as, if not more, important than its immediate disposition of current electoral-speech restrictions. And, that ruling's implications for the constitutional future of politics and advocacy will merit as close consideration as its practical consequences for the intense election year that looms ahead.

[Image via [nati].]