On the New Free Speech Case

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by Rob Natelson

Here are some quick comments on the Supreme Court’s opinion in Citizens United v. FEC:

* The Court voided a federal law insofar as the law banned independent election expenses by corporations and labor unions on behalf of a candidate. Direct corporate or union contributions to a candidate’s campaign were not at issue. Justice Kennedy wrote the opinion.

* The court split 5-4 on this point, with the justices of the so-called “liberal wing” dissenting. The dissent was written by Justice Stevens and joined by Ginsburg, Breyer and Sotomayor.

* On other hand, the Court upheld legal disclosure and disclaimer requirements as applied to corporations and unions. The court split 8-1 on this, with Justice Thomas dissenting. Justice Thomas reiterated the argument (accepted by the Court just a few years ago) that the First Amendment includes a right to anonymity, and he recited recent cases in which public officials and private groups had used campaign disclosure information to identify, harass, and injure donors with whom they disagreed.

* Both the Court and the dissent focused on whether the federal law at issue violated the First Amendment. No one addressed what I consider a more fundamental question – one the Court has never adequately examined: Is the Constitution’s grant to Congress of power to “regulate” the “Manner of holding Elections” broad enough to include this sort of campaign finance legislation at all? There is considerable Founding-Era evidence that the answer is “NO.” If that is the case, the law should have been struck down without even reaching the First Amendment question.

* Justice Stevens had an “original understanding” argument that, in my view, bordered on the frivolous. It was that the Founding Generation distrusted corporations and imposed extensive regulations on them, so the Founders would not have thought that corporations had any freedom of speech. However, the regulations in question were economic; Justice Stevens could point to no instance of a Founder suggesting that corporations were without freedom of speech. It is true that the Founders acknowledged the propriety of all sorts of economic regulations — and not just on corporations. But they singled out speech for special protection.

* The majority overruled the 1990 case of Austin v. Michigan Chamber of Commerce, which held that independent corporate and union expenditures on behalf of candidates could be banned. There was much discussion about stare decisis — the principle that case precedent should be respected. The majority and dissent analyzed the issue at some length, as did Chief Justice Roberts in a concurring opinion joined by Justice Alito.

* There is a special irony in the fact that the “liberal wing” of the Court voted to uphold this congressional regulation on speech. During the twentieth century, Supreme Courts with liberal majorities vastly increased the scope of the Free Speech Clause — (1) applying it against the states and in court proceedings, even though the wording of the First Amendment specifically says that it applies only to “Congress” and (2) extending “free speech” protection to such marginal activities as pornography and nude dancing. Now comes a case in which the very entity restricted by the First Amendment (Congress) tried to suppress speech at the core of the First Amendment (political speech) — but the liberal wing wanted to uphold the law.

* Montana Code Annotated Section 13-35-227 reads in part:

“Prohibited contributions from corporations. (1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.

“(2) A person, candidate, or political committee may not accept or receive a corporate contribution described in subsection (1). . . .”

It seems likely that this section will have to be narrowed so it is limited to a ban on direct corporate contributions to candidates.

* Most memorable quote from the case:

“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”  — Justice Kennedy

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EDITOR’S NOTE: This article was originally published at the Electric City Weblog, and is  reposted here with the permission of both Rob Natelson and Electric City.  Thank you.
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Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment at the University of Montana School of Law. He is a recognized national expert on the framing and adoption of the United States Constitution. His opinions are his own, and should not be attributed to any other person or institution.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been published or cited by many top law journals. (See: www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado's Independence Institute.

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This entry was posted on Thursday, January 21st, 2010 at 10:12 pm. It is filed under Constitution, Elections and tagged with Citizens United, First Amendment, Freedom of Speech. You can follow any responses to this entry through the RSS 2.0 feed.