Monday, September 17, 2012

The Supreme Court & Citizens United

Robert Sterling,

The Supreme Court ruling on Citizens United has become widely loathed, and rightfully so.  What has become less well known about the decision, however, is as bad as the ruling may be, had they ruled against Citizens United, it would have been decidedly worse.  And perhaps most surprising to Konformist readers is that the issues in the ruling directly involve the history of The Konformist.

A little background: the case, Citizens United v. Federal Election Commission, involved a 2008 documentary by the right-wing Citizens United titled Hillary: The Movie.  The movie was a hack attack on Ms. Clinton, ironically on the false assumption that she would be the Democratic Party nominee in November.  In July 2008, the DC District Court ruled that advertisements for the film during the election period would violate election finance laws.

Jeffrey Toobin is not the most trustworthy of writers, but in a May 2012 New Yorker article he presents the facts pretty clearly, facts which have been usually ignored in any discussion of the ruling.  The most telling part was the exchange between the conservative Supreme Court judges and Deputy Solicitor General Malcolm L. Stewart.  Here is the excerpt from Toobin's piece:

Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”

Yes, Stewart said: “Those could have been applied to additional media as well.”

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign.

Kennedy interrupted. He was the swing Justice in many areas of the law, but joined the conservatives in all the campaign-spending cases. Sensing vulnerability on the subject of books, he joined Alito’s assault.

“Well, suppose it were an advocacy organization that had a book,” Kennedy said. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the sixty- and thirty-day periods?”

Stewart’s answer was a reluctant, qualified yes.

But neither Alito nor Kennedy had Roberts’s instinct for the jugular. The Chief Justice wanted to make Stewart’s position look as ridiculous as possible. Roberts continued on the subject of the government’s censorship of books, leading Stewart into a trap.

“If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asked.

“That’s correct,” Stewart said.

“If it’s a five-hundred-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Roberts asked.

“Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preëxisting Federal Election Campaign Act provisions,” Stewart continued, doubling down on his painfully awkward position.

Through artful questioning, Alito, Kennedy, and Roberts had turned a fairly obscure case about campaign-finance reform into a battle over government censorship. The trio made Stewart—and thus the government—take an absurd position: that the government might have the right to criminalize the publication of a five-hundred-page book because of one line at the end.


Though Toobin makes the issues raised in the case seem surprising, they shouldn't have been.  In fact, in communications with Citizens United before the Supreme Court heard the case, I supported their side in the legal battle on this basis.  By defining Hillary: The Movie (and any advertisement of it) as electioneering rather than a work of speech, the FEC had turned speech into something it could regulate.  The questions asked by the Supreme Court judges were questions that should have been asked by implication of a ruling in favor of the FEC, and the response by Stewart confirmed that siding with the FEC was an extremely dangerous precedent.

Put it another way: let's pretend that instead of this case involving the 2008 documentary Hillary: The Movie, it was the 2004 documentary Fahrenheit 9/11 at the center of the battle.  It is pretty hard to argue that Fahrenheit wasn't a movie with a definite political agenda, and thus it too would be defined as political advocacy.  Would it have been acceptable if the FCC had restricted it during the 2004 election?

And since Stewart declared the FCC had the power to regulate books with political advocacy during a campaign season, are there any books that could fit this description?  In fact, there are many, but there's at least one I can think of right away: 50 Reasons Not to Vote for Bush, a book written by myself and published by Feral House in 2004.  By the FEC's own logic, this book (which I admit was a work of political advocacy, something that is pretty hard to deny when reading the title) could be regulated by virtue of election finance laws.

This was the fundamental issue behind the Citizens United case.  And in this case, the FEC had way overstep its legal boundaries.  With Orwellian logic, the FEC had redefined speech as campaign contributions, and turned a law designed to restrict the perversion of politics by money into a law that could restrict the presentation of ideas.

This doesn't mean I support the Citizens United ruling.  The Supreme Court could have allowed the continued regulation of political commercials over public airwaves, but declared the restrictions on Hillary: The Movie as an expansive and unconstitutional abuse of power.  Even so, the can of worms opened by this ruling (starting with the rise of SuperPACs) is just as much due to the FEC's lack of respect for constitutional issues than it is the cynical posturings of the Supreme Court's right wing.

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