Corporate vs. Individual Speech, Part I
(Editor's note: This is the first of two-parts examining the Supreme Court's Citizens United decision.)
"An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment."
Justice Hugo Black, concurring opinion, New York Times Co. v. U.S.
Bill Gates is a wealthy individual. His net worth was $79.2 billion as of Nov. 2. Gates can use his entire $79.2 billion, anytime and anywhere, to engage in political speech -- that is, to create political ads for or against causes and candidates. And if you and your friends disagree with what Gates is saying, you can pool your individual resources to engage in counter-speech. But could you set up a not-for-profit corporation and use its corporate funds to engage Gates in political speech?
Before, the U.S. Supreme Court decided the Citizens United case, the answer was an unequivocal "NO!" In the court's words, "Wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. ... Yet certain disfavored associations of citizens -- those that have taken on the corporate form -- are penalized for engaging in the same political speech."
The court saw a problem with that because whatever else a corporation is, it is an "association of citizens." The Citizens United court then criticized its own earlier decision in the Austin Case.
"The Austin majority undertook to distinguish wealthy individuals from corporations on the ground that '[s]tate law grants corporations special advantages -- such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.' ... This does not suffice, however, to allow laws prohibiting speech. 'It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.'”
So, what associations of citizens do you think should be allowed to engage in political speech to influence elections in America? All associations? Or, only some associations? Should citizens who have associated to form National Rifle Association prohibited from expending NRA corporate funds (general treasury funds) to create political ads to defeat a candidate who campaigns on a platform of abolishing the 2nd Amendment and confiscating all guns?
Should Planned Parenthood be prohibited from placing TV ads on behalf of pro-choice candidates? Should a movie maker be prohibited from showing his film on a cable channel if the film places the entire blame for the Benghazi fiasco on Hillary Clinton? Should the Catholic or Baptist churches be prohibited from airing on TV political ads supporting candidates who support traditional marriage, or oppose abortion?
All of these are associations of citizens, and all, because they were corporations, prior to the Citizens United decision of the U. S. Supreme Court, were barred, under the threat of criminal prosecution by the provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), from using their corporate funds to engage in the sorts of political speech enumerated above.
That same BCRA, however, and not the Supreme Court, created what we have come to know in America as PACS -- political action committees. (Those who blame the court for creating them are simply uninformed and wrong.)
In the BCRA, Congress also forbade ordinary corporations (excluding media corporation) and labor unions from using their general treasury funds to engage in political speech for or against political causes and/or candidates, during certain time periods preceding primary and general elections (e.g., buy radio and TV ads, or make movies, etc.).
The BCRA, however, at the same time authorized corporations, unions and others to set up new entities -- PACs, to use “separate segregated funds," and to raise and expend those funds to engage in political speech for or against the political causes and/or candidates, without any time constraints. That which was forbidden to corporations and unions, was permitted to the PACs.
But in the Citizens United decision of the U.S. Supreme Court, the court explained the problem of being required to set up PACs in order to engage in political speech.
"As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC [Federal Election Commission] enforcement must ask a governmental agency for prior permission to speak. ... These onerous restrictions thus function as the equivalent of 'prior restraint' by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England -- laws and governmental practices of the sort that the First Amendment was drawn to prohibit."
Recent history shows that if the IRS can be used to silence tea party organizations who apply for tax-exempt status, there is no reason to believe that tea party organizations who ask the FEC to "speak" will receive any better treatment.
For those willing to take time to read Citizens United, the issue is no more complicated than this:
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.
Copyright 2015
John Donald O'Shea
"An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment."
Justice Hugo Black, concurring opinion, New York Times Co. v. U.S.
Bill Gates is a wealthy individual. His net worth was $79.2 billion as of Nov. 2. Gates can use his entire $79.2 billion, anytime and anywhere, to engage in political speech -- that is, to create political ads for or against causes and candidates. And if you and your friends disagree with what Gates is saying, you can pool your individual resources to engage in counter-speech. But could you set up a not-for-profit corporation and use its corporate funds to engage Gates in political speech?
Before, the U.S. Supreme Court decided the Citizens United case, the answer was an unequivocal "NO!" In the court's words, "Wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. ... Yet certain disfavored associations of citizens -- those that have taken on the corporate form -- are penalized for engaging in the same political speech."
The court saw a problem with that because whatever else a corporation is, it is an "association of citizens." The Citizens United court then criticized its own earlier decision in the Austin Case.
"The Austin majority undertook to distinguish wealthy individuals from corporations on the ground that '[s]tate law grants corporations special advantages -- such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.' ... This does not suffice, however, to allow laws prohibiting speech. 'It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.'”
So, what associations of citizens do you think should be allowed to engage in political speech to influence elections in America? All associations? Or, only some associations? Should citizens who have associated to form National Rifle Association prohibited from expending NRA corporate funds (general treasury funds) to create political ads to defeat a candidate who campaigns on a platform of abolishing the 2nd Amendment and confiscating all guns?
Should Planned Parenthood be prohibited from placing TV ads on behalf of pro-choice candidates? Should a movie maker be prohibited from showing his film on a cable channel if the film places the entire blame for the Benghazi fiasco on Hillary Clinton? Should the Catholic or Baptist churches be prohibited from airing on TV political ads supporting candidates who support traditional marriage, or oppose abortion?
All of these are associations of citizens, and all, because they were corporations, prior to the Citizens United decision of the U. S. Supreme Court, were barred, under the threat of criminal prosecution by the provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), from using their corporate funds to engage in the sorts of political speech enumerated above.
That same BCRA, however, and not the Supreme Court, created what we have come to know in America as PACS -- political action committees. (Those who blame the court for creating them are simply uninformed and wrong.)
In the BCRA, Congress also forbade ordinary corporations (excluding media corporation) and labor unions from using their general treasury funds to engage in political speech for or against political causes and/or candidates, during certain time periods preceding primary and general elections (e.g., buy radio and TV ads, or make movies, etc.).
The BCRA, however, at the same time authorized corporations, unions and others to set up new entities -- PACs, to use “separate segregated funds," and to raise and expend those funds to engage in political speech for or against the political causes and/or candidates, without any time constraints. That which was forbidden to corporations and unions, was permitted to the PACs.
But in the Citizens United decision of the U.S. Supreme Court, the court explained the problem of being required to set up PACs in order to engage in political speech.
"As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC [Federal Election Commission] enforcement must ask a governmental agency for prior permission to speak. ... These onerous restrictions thus function as the equivalent of 'prior restraint' by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England -- laws and governmental practices of the sort that the First Amendment was drawn to prohibit."
Recent history shows that if the IRS can be used to silence tea party organizations who apply for tax-exempt status, there is no reason to believe that tea party organizations who ask the FEC to "speak" will receive any better treatment.
For those willing to take time to read Citizens United, the issue is no more complicated than this:
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.
Posted: Friday, November 13, 2015 12:00 am. QCOnline.com
By John Donald O'Shea Copyright 2015
John Donald O'Shea
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