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Supreme Court Rolls Back Election Reform

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C. M. Barons
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Joined: Jul 29 2008
Supreme Court Rolls Back Election Reform

Sources: Washington Post, Washington Examiner, New York Times

Last Thursday, the Supreme Court rolled back 60 years of election reform law in a ruling that affords Constitutional protection to private corporations and special interest groups.  The ruling arose from a case brought by "Hillary: The Movie" producer, David N. Bossie, who charged that his rights were violated when the FEC prohibited an eleventh-hour airing of his film to television audiences on the grounds it violated federal campaign law.  Bossie has been a minor player in political intrigue, fundamentally recognizable as an obsessive anti-Clinton muckraker.  His unethical methods that include stalking, fist-fights and coercion have won disfavor with both Republicans and Democrats.  Gingrich pressured him to resign as top investigator for Rep. Dan Burton, R-Indiana, chairman of the Government Reform and Oversight Committee; Former Arkansas Supreme Court Justice Jim Johnson caught Bossie "red-handed" trying to steal documents related to Bill Clinton, former-President George H. W. Bush filed an FEC complaint against Bossie's group after it invited voters to call a hot line to hear doctored tape-recordings of conversations between Clinton and alleged sex-partner, (Gertrude) Gennifer Flowers.  Past-Senator Alfonse D'Amato forced Bossie to submit an affidavit proclaiming his independence from Bossie.

The 5-to-4 Supreme Court decision is a watershed ruling, construing personal rights to private entities.  The court majority sided with Bossie and his organization, Citizens United, conceding their First Amendment, free speech rights had been violated by government regulation.  The dissenting judges maintained that allowing corporate money to flood the political marketplace would corrupt democracy.   A benchmark shift from previous opinion, the ruling has dramatic political implications.  Labor unions, religious groups, lobbyists and labor unions will reshape their political conduct in light of the ruling. 

Reacting to the decision, President Obama proclaimed, “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”  Ignoring the obvious repercussions Justice Anthony M. Kennedy wrote, “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.”

The decision in Citizens United v. Federal Election Commission, overrules two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

The 2002 law, usually called McCain-Feingold, banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.  In 2007 the Supreme Court narrowed the definition of "electioneering communications" to those “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” 

Five opinions were offered as part of Thursday's ruling with Justice John Paul Stevens penning a 90-page dissent. Justice Stevens, speaking for the minority, characterized the decision as a grave error, treating corporate speech the same as that of human beings.

Eight of the justices agreed that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals. “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way,” Justice Kennedy wrote. Justice Clarence Thomas dissented on this point.

The latest opinion will not revoke bans on direct contributions to candidates, although there was debate over the difference between intellectual and financial expression.  “The difference between selling a vote and selling access is a matter of degree, not kind,” Justice Stevens wrote. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”

Justice Kennedy responded that “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

“Hillary: The Movie,” is 90-minutes of advocacy journalism produced by Citizens United, a conservative nonprofit corporation.  It was released during the Democratic presidential primaries in 2008.

Citizens United lost a suit that year against the Federal Election Commission, and backed-off plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it.  The film was shown in theaters in six cities, and is available on DVD and the Internet.

The majority cited a score of decisions recognizing the First Amendment rights of corporations, and Justice Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment.”  Justice Stevens defended the restrictions struck down on Thursday as modest and sensible. Even before the decision, he said, corporations could act through their political action committees or other permissible avenues.  Broadcast news reports, commentaries and editorials were never restricted. Justice Kennedy’s majority opinion maintained there was no principled way to distinguish between media corporations and other corporations and that the dissent’s theory could be expanded to suppression of political speech in newspapers, on television news programs, in books and on blogs.

Justice Stevens responded that people who invest in media corporations know “that media outlets may seek to influence elections,” adding that lawmakers might now want to consider requiring corporations to disclose how they intended to spend shareholders’ money or to put such spending to a shareholder vote.

On its central point, Justice Kennedy’s majority opinion was joined by Chief Justice Roberts and Justices Alito, Thomas and Antonin Scalia.  Justice Stevens’s dissent included Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.   

Initially it was assumed that the court would take a narrow view and rule that Citizens United was not the sort of group to which the McCain-Feingold law was meant to apply, or that the law did not mean to address 90-minute documentaries, or that video-on-demand technologies were not regulated by the law.   

Instead, it addressed the question of whether Austin and McConnell should be overruled.   “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,” Justice Kennedy wrote. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

Public Citizen, the Ralph Nader group that has supported campaign finance laws, is outraged by the decision.  They are advocating a constitutional amendment.  In their statement responding to the decision, Public Citizen's leaders demanded public financing of congressional elections, and added, "Public Citizen will aggressively work in support of a constitutional amendment specifying that for-profit corporations are not entitled to First Amendment protections, except for freedom of the press. We do not lightly call for a constitutional amendment. But today’s decision so imperils our democratic well-being, and so severely distorts the rightful purpose of the First Amendment, that a constitutional corrective is demanded.

"We are formulating language for possible amendments, asking members of the public to sign a petition to affirm their support for the idea of constitutional change, and planning to convene leading thinkers in the areas of constitutional law and corporate accountability to begin a series of in-depth conversations about winning a constitutional amendment."

David Bossie's provocative film about Hillary Clinton is not his first venture into that medium.  His group, Citizens United, offered a conservative answer to Michael Moore's successful films (Roger and Me, Bowling for Columbine, Sicko, etc.). After Moore's "Fahrenheit 9/11" premiered in 2004, Bossie's Citizens United group released "Celsius 41.11."  When it became clear that Bossie's longtime enemy Hillary Rodham Clinton would run for president, Citizens United released "Hillary: The Movie."  His film includes right-wing pundits: Dick Morris, Ann Coulter, Mark Levin and Robert Novak, among others.  Reviewed as an "extremely biased, cynical and politically motivated assassination of (Clinton's) character; there is little pretence at objectivity or moderation. Simply talking heads spout insults with no other motivation than dislike." The sole compliment about the then-senator comes from conservative firebrand Ann Coulter, "Looks good in a pantsuit."

The Federal Election Commission restricted Citizens United's ability to advertise the film during the 2008 primary election season.  Bossie and other conservative activists considered the restriction as an abridgement of their freedom of speech.  "The marketplace for my movie was completely and totally shut down by the Federal election Commission," Bossie said.  His suit resulted in Citizens United v. Federal Election Commission.  It is believed by some critics that Citizens United created the withering movie with the intent that it would fall under the tangle of broadcast and advertising restrictions of existing campaign finance law.  "The movie was created with the idea of establishing a vehicle to chip away at the decision," said Nick Nyhart, president of Public Campaign, a group that opposed Thursday's decision. "It was part of a very clear strategy to undo McCain-Feingold."

When the Citizens United case went to a lower court in 2008, the court sided with the FEC, saying that the film was effectively a 90-minute campaign ad "susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her."

Bossie's lawyers appealed to the Supreme Court, and recruited Floyd Abrams, a veteran First Amendment lawyer who worked on the Pentagon Papers case.  Also on the team: Theodore B. Olson, former solicitor general, who argued for George W. Bush during the 2000 Florida recount debacle.  Olson had personal motivations.  "Hillary: The Movie" was dedicated to his wife, Barbara Olson, a conservative commentator who was a passenger on American Airlines Flight 77 when it crashed into the Pentagon on Sept. 11, 2001. She was a longtime Clinton critic, working with Bossie in the trenches on Capitol Hill through the 1990s investigations, and wrote the book "Hell to Pay: The Unfolding Story of Hillary Rodham Clinton."

"Very, very few people in the world knew as much about Hillary and Bill Clinton as Barbara Olson did," Bossie said.  And Olson proved to be key in transforming the case from its narrow focus on McCain-Feingold.

The shift in focus hinges on a single discussion with Deputy Solicitor General Malcolm L. Stewart, representing the FEC.  He was asked, "If the movie were a book, would the government ban publishing the book if it mentioned a candidate for office within the election time frame?"  Stewart said that it could.

"That's pretty incredible," Justice Samuel A. Alito Jr. said.  Then came questions about electronic devices such as the Kindle.  "If it has one name, one use of the candidate's name, it would be covered, correct?" Chief Justice John G. Roberts Jr. asked.  "That's correct," Stewart replied.

"It's a 500-page book, and at the end it says, 'And so vote for X,' the government could ban that?" Roberts asked.  "That sent a chill down the Supreme Court," Bossie said. The argument became a "point of demarcation."  Citizens United spent about $1.25 million in legal fees on the case -- so much, Bossie said, that it "makes you cry."  But, he said, it was worth every dollar.  "We have been trying to defend our First Amendment rights for many, many years," Bossie said. "We brought the case hoping that this would happen. . . . to defeat McCain-Feingold."

Great works of literature have dealt with the erosion of personal rights as usurped by institutions of power.  The likes of George Orwell, his classic 1984, envisioned the enemy of personal freedom as socialist dictatorship.  Orwell did not live in a world wired together by CNN and the internet.  He could not have imagined an era of newspapers in decline and news organizations owned by corporations.   He saw armies in perpetual war, fighting for anonymous governments oppressing personal liberty.  As recent as the 1960s, Dwight D. Eisenhower spotlighted a Military Industrial Complex eager to function as invisible government.  The last foothold on rights dedicated to individuals is being redacted.  Private entities are maneuvering to claim Constitutional rights intended for individuals- people: not banks, insurance companies, energy purveyors and special interest groups.  When they cannot buy power, they send in the lawyers to claim it.  Witness the economy and public dissatisfaction, then understand why the faltering corporate world is scrambling to tie up loose ends.  


Citizens United board members and affiliations:

David N. Bossie, President; Citizens United is affiliated with The Presidential Coalition, a 501(c)(4), and the 2007 Conservative Victory Committee, a Section 527 political action committee. Previously, it was affiliated with the National Security Political Action Committee (National Security PAC), Presidential Victory Committee and Americans for Bush.  Beginning in September 1996 through 1998, Bossie served as Chief Investigator for Chairman Dan Burton's Committee on Government Reform and Oversight in the U.S. House of Representatives. Bossie was recruited to this position by then-Speaker Newt Gingrich and Chairman Burton to investigate then-President Clinton's illegal foreign money entering the United States to influence the 1992 and 1996 presidential elections. Bossie managed Burton's transition into the Chairmanship; managed a $10 million annual budget; directed personnel matters; and, supervised a 40-plus person investigative staff.

Prior to serving Chairman Burton, Bossie served in the United States Senate as an investigator for Senator Lauch Faircloth on the Special Committee to investigate Whitewater Development Corporation and related matters, chaired by Senator Alfonse D'Amato.

Beginning in 1992, Bossie was Director of Political Affairs and Communications for Citizens United. Bossie spent several months in Arkansas researching then-Governor Clinton, where he conducted the research and co-wrote, with Floyd Brown, Slick Willie: Why America Cannot Trust Bill Clinton. After Clinton's election, Bossie wrote investigative pieces for the monthly newsletter, "Clinton Watch." It was at this time Bossie began investigating what is now known as "Whitewater" and provided key information to the FBI and the national television and print media, which led to the appointment of an Independent Counsel.

From 1988 to 1990, Bossie was the Director of Programs for the Leadership Institute which trains young men and women in campaign technology, student publications and the operations of Congress. Also, Bossie organized, managed and lectured at over 40 seminars per year.

Bossie also served as the National Youth Director for Senator Bob Dole for President in 1988; State Youth Director for Linda Chavez for U.S. Senate (MD) in 1986; and, the Maryland State Deputy Youth Director for Reagan/Bush re-elect in 1984.  Bossie's groups, Citizens United, The Presidential Coalition and National Committee For Faith and Family employ the Christian telemarketing firm InfoCision Management Corporation.  InfoCision disseminated Bossie's anti-Clinton communications during the Whitewater investigation and continues to manage his mailings and fundraising activities.  Ironically, he was the dominant staff member of the House committee investigating campaign finances serving as chief investigator.

Michael Boos, Vice-President and general counsel; In 1981, Mr. Boos served as a campaign director for the National Conservative Political Action Committee, where he directed independent expenditure campaigns against a number of prominent liberal congressmen and senators.  From 1988-1990, Mr. Boos served as executive director of the Legal Affairs Council, where he oversaw "values" cases and conservative challenges in the nation's courts.  He is also affiliated with American Sovereignty Action Project. 

Floyd G. Brown, Chairman of the Board, Executive Director, The Reagan Ranch and Young America's Foundation;  best known as the creator of the infamous Willie Horton ad that defeated Presidential candidate, Michael Dukakis.  Brown currently is a member of the board of directors or a permanent standing committee for the National Rifle Association, the American Conservative Union, and Michael Reagan's Legacy PAC.

Brown is President of the Board of Directors of The Reagan Legacy Foundation, a non-profit, charitable organization founded by Michael Reagan, son of former President Ronald Reagan.  Brown has written extensively for many magazines and newspapers including the San Francisco Chronicle, the Washington Times, National Review and Human Events. As a commentator he has appeared on numerous network and cable TV shows including: CNN's Crossfire, the CBS Evening News, ABC's Primetime, NBC's Today Show, FOX News, MSNBC and more.  He is affiliated with two PACs: a 501(c)4 organization, Policy Issues Institute and National Campaign Fund.

Brian J. Berry, Director; Media Consultant; television and radio copywriter from Austin, Texas.

Berry has directed campaigns, serving as manager of Texas Senator Kay Bailey Hutchison's 1993 special election and the primary campaign for President George W. Bush's first run for Governor in 1994. He was Executive Director of the Ohio Republican Party, Southwestern Regional Political Director for the Republican National Committee and a regional director for President George H.W. Bush and former Senate Republican leader Bob Dole. Berry also served as Senior Vice President of The Strategy Group for Media and has conducted seminars on campaigning for the International Republican Institute in Azerbaijan, Haiti, Morocco, Southern Sudan, and Ukraine. 

Douglas L. Ramsey, Secretary-Treasurer; is a media and professional sporting entrepeneur.  He has experience in media management and business development. Ramsey held senior management positions with both the Seattle Seahawks and SuperSonics, as Senior Director of Corporate Sponsorship and Broadcast Development.  He was instrumental in developing the marketing model for professional sports.

Ramsey graduated from Central Washington University with a Bachelor of Science Degree in Aerospace Science.  

Ronald E. Robinson, Director; President, Young America's Foundation;

Bob Barr, Congressman and Honorary Chairman; former member of the U.S. House of Representatives from Georgia's 7th District, left the Republican Party for the Libertarian party. He was a CIA official from 1971-1978, U. S. Attorney in Georgia Northern District from 1986-1990, Southeastern Legal Foundation President from 1990-1991, Georgia congressman from 1995-2003 and is currently with   Liberty Strategies LLC Consulting Firm, of which he is Principle and Founder.  He's affiliated with the American Conservative Union, 21st Century Liberties Chair for Freedom and Privacy, the National Rifle Association, The Constitution Project, Initiative on Liberty and Security Board Member, Georgetown Journal of Law, Public Policy and a Libertarian Party National Committee member.

As a Georgia congressman, his chief contributors were: Paramont Grading, Lockheed Martin, AFLAC Inc., NRA, Health Professionals, Real Estate industry and Law Firms.


Howard B. Owens
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Joined: Apr 23 2008
Eugene Volokh, a UCLA law professor and perhaps one of the most brilliant legal scholars around, wrote about money and speech recently. It's a point that can't be escaped -- restrict how money can be spent on speech and you restrict speech. I'm no fan of big corporations being treated as persons, but the fact is, corporations are made up of people, people who have a right to free speech and a right to peaceably assemble. So you can't restrict the political rights of corporations without restricting the right s of the people who make up the corporations.
Bea McManis
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Joined: May 4 2009
Howard, don't those people already have the right to free speech and free assembly?
Chris Charvella
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Joined: Jan 15 2009
Howard, that's a failed exercise in logic. Corporations are pieces of paper not people. Also, corporate ownership cannot assume to speak for the citizens under their employ, that's not free speech, it's the opposite.
Lorie Longhany
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Joined: May 2 2008
deleted and moved to the other thread
Howard B. Owens
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Joined: Apr 23 2008
Chris, a corporation that makes a contribution is not assuming it speaks for the employees. That's failed logic. Employees are employees not owners. The pieces of paper that make corporations have names of real people on them and those real people have real rights. C.M., there are two problems with public funding of elections. First, you're taking away my right to contribute to the candidate of my choice, which is a fundamental First Amendment right; second, you're forcing my tax money to go to candidates I might not support. And all I'm arguing is for constitutionalism and not getting into the merits of the outcomes.
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