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.

Posted: Friday, November 13, 2015 12:00 am. QCOnline.com

By John Donald O'Shea  

Copyright 2015
John Donald O'Shea 

AT WHAT POINT SHOULD A CHURCH ENTER THE POLITICAL THICKET?

   

    The Catholic Church has sued the Obama Administration. Bishop Daniel Jenky

of Peoria explains why:

    'We all know that our religious freedom is under direct attack as articulated

    in the federal government's Health and Human Services Mandate. ... “The

    mandate forces Catholic schools, universities, hospitals, and charitable groups

    to provide insurance coverage of abortion-inducing drugs, contraceptives and
   
    sterilization. This is directly contrary to our Catholic mission and violates our

    religious freedom.''


    But if the Obama Administration is truly directly attacking the “religious freedom”

of Catholics and the Catholic Church, why isn’t the church calling upon its membership

to “dump” President Obama in the fall election. If killing fetuses is truly a grave moral wrong,

why “pussy foot.” Why merely suggest that Catholics should “vote their consciences?” Why not

come right out and call for the President’s defeat? I suggest there are two reason.

   
    Father Michael Schaab of St. Pius Parish in Rock Island gives the first reason:

    “People always are concerned and leery that the church doesn't get into

    situations in which it looks as if they're being told how to vote. But the Bishop

    has been clear that's not the intent,''


    But if the church really believes abortion is tantamount to murder, why isn’t that “the

intent?” What’s the purpose of having a church if it won’t forcefully speak out against

what it perceives to be the equivalent of murder?


    So why doesn’t the church come right out and say, “If you truly believe that

abortion is a grave moral wrong, you can’t vote for President Obama in the fall? Indeed,

prior to 1954 the Churches were not so circumspect.


    On the Internal Revenue Service (IRS) website, you will find the following, which I

suspect is the real reason for the church “pulling its punches.”


    “In 1954, Congress approved an amendment by Sen. Lyndon Johnson to

     prohibit 501(c)(3) organizations, which includes ... churches, from engaging

    in any political campaign activity. [O]ver the years, it has in fact strengthened

     the ban. The most recent change came in 1987 when Congress amended the

    language to clarify that the prohibition also applies to statements opposing

    candidates.

    “Currently, the law prohibits political campaign activity ...  churches by

    defining a 501(c)(3) organization as one "which does not participate in,

    or intervene in (including the publishing or distributing of statements),

    any political campaign on behalf of (or in opposition to) any candidate

    or public office."

    So, the question is this: Does the church have a realistic fear that if that if it descends into

the “political thicket,” that it will lose its tax exempt status? You decide. That same web site also

states

    “For the 2006 election cycle, the IRS received 237 referrals and

    selected 100 (44 churches, 56 nonchurches) for examination. More
   
    than half of these cases are still under investigation. However, the

    IRS did substantiate improper political activity in 26 cases and issued

    written advisories. So far, there are no revocation recommendations.



   But why does the IRS’s conduct not violate the First Amendment. That amendment

states “Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech ...”


    If a President raised a campaign war fund of a billion dollars with the promise he would

repeal the 13th Amendment and re-enslave all blacks, wouldn’t the churches, as a free exercise

of their religion and speech, have a right to denounce him and encourage the election of his

opponent? What if the President called for the extermination of all Jews, Catholics and Baptists,

or the suppression of all religions, wouldn’t the churches have the right to compare him to

Hitler and Stalin, and call upon their congregations to make sure he was not re-elected?


    There is a Constitutional reason that the churches are not taxed. Chief Justice John

Marshall long ago said “the power to tax is the power to destroy.” In 1970, in Walz v. Tax

Commissioner, Mr. Chief Justice Burger wrote

    “The legislative purpose of a property tax exemption is neither the advancement

    nor the inhibition of religion; it is neither sponsorship nor hostility. ...


    “Granting tax exemptions to churches necessarily operates to afford an

    indirect economic benefit ..., but yet a lesser involvement than taxing them.


     The exemption creates only a minimal and remote involvement between

    church and state and far less than taxation of churches. It restricts the fiscal

    relationship between church and state, and tends to complement and reinforce

    the desired separation insulating each from the other.”


    For the 2006 election cycle, the IRS investigated 100 churches, and found 26 violations.

It revoked no tax exemptions. Why? Because the IRS has to know that to do so would violate

First Amendment (free exercise of religion and free speech) rights, and would be

unconstitutional. No rule is better settled than that the First Amendment exists first and foremost

to guarantee political speech. Where true political speech is involved, “no law” means “no law.”


    In the much maligned (by liberals) 2009 case of Citizens United v. Fed. Election Comm.

the court said bluntly:

        “We find no basis for the proposition that, in the context of
   
         political speech, the Government may impose restrictions
   
        on certain disfavored speakers. Both history and logic
   
        lead us to this conclusion.”


  The “disfavored speakers” who brought the Citizens United case were corporations who wished

to use their “general treasury funds to make independent expenditures for speech

 (“electioneering communication”) ... expressly advocating the defeat of a candidate.” The Court

stated, “the Court has recognized that First Amendment protection extends to corporations.” Most

churches are corporations. And if under Citizens United, they can expend funds to advocate the

“election or defeat of a candidate, they certainly can engage in pure speech to advocate the

“defeat” of a candidate.


   But even if the churches would have to sacrifice their tax exemptions to condemn grave

moral wrongs, shouldn’t they do so?  If they fail to speak out in the face of who and what they

perceive to grave evil, who needs them?

Posted Online: July 17, 2012, 7:21 a. m.  - Quad-Cities Online

by John Donald O'Shea

Copyright 2012, John Donald O'Shea