THE CHICKEN HAWK BRIEF: CITIZENS UNITED v. FEC

Citizens United v. Federal Elections Commission, 558 U.S. ___ (2010)


By

Joseph Chez

Why should I be surprised that Justice Anthony M. Kennedy wrote the majority opinion for the above case, when at a private gathering, standing next to Justice Kennedy, I heard him say, “Anybody else but Hillary!” And yet, the U.S. Supreme Court just handed down a landmark case decision (January 21, 2010) which is a game changer for American politics. Further, political experts believe the Court placed its judicial weight - favoring the political right. The 5-4 decision now lifts campaign limits and restrictions on corporate spending in federal elections. But, the political left in the country is not surprised; under the Rehnquist court, in December 2000, in Bush v. Gore, 531 U.S. 98 (2000), the U.S. Supreme Court ruled in favor of George W. Bush and simply gave away the 2000 presidential election to the republicans. This week, the Robert’s Court ushered a new era of corporate America having a free reign to dominate all things political in the country. The rationale? I can assure you that the issues are rather complex, but I have briefed the recent Supreme Court ruling for the masses rather than for law professors, and thus, I have come out with this Chicken hawk legal brief:
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CHICKEN HAWK -- THE BRIEF

Citizens United v. Federal Elections Commission

FACTS: A nonprofit corporation, Citizens United, released a documentary (hereinafter Hillary) critical of then Senator Hillary Clinton and candidate in the 2000 Presidential Election, which potentially violated the Bipartisan Campaign Reform Act (BCRA) prohibiting corporations and unions from using their general funds for speech that is deemed “electioneering communication” and that is publicly distributed expressly advocating the election or defeat of a candidate. 2 U.S.C. § 441b. Citizens United thus sought declaratory and injunctive relief fearing violation of election laws.

PROCEDURAL HISTORY:
On appeal from the United States District Court for the District of Columbia for which the three-judge district court denied appellant's motions for preliminary injunctions. Appellant is now requesting the Court for motion to dismiss or affirm.

ISSUE: 1. Whether 2 U.S.C. §441b of BRCA is valid and applicable under

Austin v. Michigan as the lower court did not resolve the issue?

2. Whether the Federal Elections Commission (FEC) violated Citizens United’s free speech?

3. Whether disclaimers and disclosure requirements are valid and must be confined to “speech?”

RULING: 1. Speech within the reach of rules created for regulating political speech is chilled and functions as the equivalent of prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. A statute that chills speech can and must be invalidated. Sec. 441b’s prohibition on corporate independent expenditures is an outright ban on speech. Austin v. Michigan is overruled. The part of McConnell v. Federal Elections Commission that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled.

2. Speech is of primary importance to the integrity of the election process. And, because speech is an essential mechanism of democracy – it is the means to hold officials accountable to the people – political speech must prevail against laws that would suppress it by design or inadvertence.

3. Citizens United’s contention that disclosure requirements must be confined to speech as it is the functional equivalent of expressed advocacy is rejected.

RATIONALE:
Case can not be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose; however, Citizens United did not waive a challenge to the Austin ruling. Notwithstanding, even though speech itself is of primary importance to the integrity of the election process, Austin provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Further, Government may not suppress political speech based on the speaker’s corporate identity and no government interest justifies limits on the political speech of nonprofit or for-profit corporations.
Disclosure requirements are the less-restrictive alternative to more comprehensive speech regulations.

DISPOSITION:
Applications of §201 and 311 (disclaimer and disclosure requirements) affirmed.

Reversed in part, affirmed in part (Austin ruling, §203 of McConnell), and remanded.
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In McConnell v. Federal Elections Commission, 540 U.S. 93, 203-209, the court placed limits on electioneering communications in a facial challenge, relying on the holding of the Austin case.

In Austin v. Michigan Chamber of Commerce, 494 U.S. 652, the court held that political speech may be banned based on the speaker’s corporate identity.
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Of course, I wrote this brief in order to better understand the reasoning behind the ruling. However, having read the entire opinion, I still fail to grasp its practical approach and legal reasoning. And just like the rest of the country, I remain confused and flabbergasted. Notwithstanding, the Supreme Court’s decision inadvertently thus leaves the country with more questions than it answers. In fact, one could aptly conclude that this ruling was deliberate and with purpose. Why you may ask? There is the belief amongst legal scholars that the conservative majority within the court is a judicial activist group pursuing a conservative agenda.  It simply makes sense that this catechism majority in the Court, is framing the issues to favor the political right and/or in anticipations of over turning cases such as Roe v. Wade. Far fetched? Not so. For if corporation can be construed as legal participants, the same as individuals, within the scope of federal elections, it follows that fetuses may also have a “voice” duly recognized by stare decisis. Or, how about this; currently, nonprofit groups such as churches are tax exempt, but are barred from political campaign intervention under IRS Code §501(c)(3). However, since many churches today are heads of nonprofit corporations, can churches now openly campaign and influence elections on issues dear to their gospel? For example: Right to life issue, or gay marriage?

However, we must insist that while under the Citizens United ruling, if corporations are to be recognized, the same as individuals, that such enterprise also be held accountable, the same as individuals. What comes to mind is, “libel.” Thus, if the Swift Boaters of America, a nonprofit corporation engages in defamation of political candidates on the left, they should not be able to seek protection under the First Amendment.

In sum, the current Supreme Court decision does however: 1) provide for corporations to be treated as individuals; 2) does away with regulations prohibiting corporations (unions) from using their funds in federal elections; 3) corporations and associations can now openly campaign in favor or against a candidate; 4) also eliminates restrictions on campaign ads prior to a primary or election; 5) and last, it keeps regulations which prohibit direct contributions to candidates.

Of course, I do not want to leave you with any inference that Justice Kennedy ruled in favor of Citizens United because he may not like Hillary. Simply, standing next to him, after a dedication of a U.S. District Court (branch), a friend of mine asked Justice Kennedy how he felt about a potential woman becoming president of these United States of America. His statement and facial expressions said it all. However, I want to believe that despite his possible disdain for Hillary Clinton, that Justice Kennedy’s ruling was entirely within the scope of jurisprudence and his judicial discretion. I will tell you however, why I decided to name the brief, the CHICKEN HAWK. Because, like they say in corporate office, when there’s lots of money to spend and lots of politicians willing to take it – IT WILL BE EASY PICK’INS!