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Thursday, February 4, 2010

"Hillary Movie" the Vehicle for Unbound Corporate Political Ads

Last September, this blog noted that the 9 justices of the U.S. Supreme Court returned from their summer recess early to hear a rare re-argument in Citizens United vs Federal Election Commission; a case involving the limits of corporate spending on political campaigns.

In a 5-4 decision issued on January 21st, the high court ruled that corporations, unions and think tanks can spend as much money as they desire on political advertisements.  The majority in the case have interpreted the First Amendment's "free speech" clause broadly, perhaps dampening the Congressional trend over the past several decades in restricting corporate political donations.

Two days after the Court issued its opinion, President Obama, in his first State-of-the-Union address, blasted the High Court, claiming its Citizens decision would, "open the floodgates...[for corporations] to interfere with elections by running advertisements for or against candidates." The apparent fear is that such [now] unlimited corporate donations will drown out the voice of the common man in most elections.

The case involved federal regulation of the political documentary titled, "Hillary, The Movie", which took a critical look at the character and career of Ms Clinton back in her pre-presidential candidate days. The documentary was produced by a conservative advocacy group; Citizens United. The issue in the case arose when the group was denied permission from the FEC to distribute the short film via "on-demand" cable services.

The chief issue in the case concerned application of the McCain-Feingold law which bans the use of corporate money in elections. Some argue this restriction puts a stake in the heart of free speech; others assert that the ban is necessary to avoid a flood of corporate election funding which would corrupt and pollute our democratic process. The FEC banned the Clinton documentary on the basis it was produced, in part, with corporate profits. Direct corporate-funding of political campaigns has been banned for more than 100-years in America (Tillman Act 1907).

The Court's decision may not be as momentous as the President and other critics fear. First, direct contributions from a corporation to a political campaign are still restricted; complicated administrative regulations turn away some of the corporate ad men. Second, the decision opens the door for Congress to ban foreign firms from making contributions. The Supreme Court's decision also practically invites Congress to toughen rules on full-disclosure for corporate donations.

No doubt, Congress will take the bait, and no doubt, some corporations will eschew such disclosures and refrain from large disclosure-triggering contributions.

The Citizens United case has a Michigan connection in that it overturned a 1990 decision of the High Court, Austin vs Michigan Chamber of Commerce, which upheld restrictions on corporate spending in election campaigns.  Last month's Citizens decision will no doubt play a major role in the upcoming mid-term elections this summer and fall.

Here's an example, from California, of what such advertisments may look like.  I can hardly wait to see a billion dollars worth of political advertisements on my flatscreen, can you?

Update:  In reviewing my blog roll, I recently came across an excellent summary by blogger David Lat of a scholarly conference conducted at the Yale Law School that seemed to conclude that the effect of Citizens United will not be as profound as some, like President Obama, think...

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Anonymous Anonymous said...

The fault in the argument allowing corporations free speech rights is that the constitution names the rights of the PEOPLE, not corporations, land or dba's.

The supreme Court seems to think that THINGS have the same rights as citizens.

March 6, 2010 at 8:18 PM 
Blogger The Law Blogger said...

This SCOTUS decision was the subject of a scholarly conference at Yale Law School. One of the attendees of the conference, David Lat, a Yale Law grad, posted an excellent analysis of the decision and a superb summary of the conference:

May 11, 2010 at 9:16 PM 

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