One of the biggest decisions the Supreme Court made last week before leaving for its summer recess was a decision not to decide.
Rather than ruling on the case Citizens United v. Federal Election Commission, which deals with restrictions on campaign speech, the Court said that it will rehear arguments in Citizens United in a rare September session. In the meantime, it has requested briefs exploring the broader issues underlying the case. This move indicates that the Court is contemplating a dramatic overthrow of precedents that have upheld the Bipartisan Campaign Reform Act (BCRA)—better known as the McCain-Feingold Act—which places limitations on spending and advertising during campaigns.
At the center of the case is a feature-length documentary produced by the conservative advocacy group Citizens United during the run-up to the 2008 presidential election. The film, Hillary: The Movie, is, according to Citizens United, a critical examination of Clinton’s performance as a first lady, a senator, and a presidential candidate. According to the FEC, it is an “electioneering communication.”
The reason this difference of opinion made its way to the Supreme Court is that Citizens United is structured as a non-profit corporation, and, under the BCRA, corporations, along with labor unions, are prohibited from widely distributing any “electioneering communications” shortly before an election (defined as 30 days for a primary and 60 days for a general election).
The law originally classed nearly all messages that referred directly to a particular candidate as “electioneering communications,” but a 2007 Supreme Court ruling narrowed the definition to only communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Hence the debate between Citizens United and the FEC about the intent of Hillary: The Movie.
However, instead of again opining on the meaning of “electioneering communication,” the Court seems poised to do something different this time. It may address head-on the question of whether the federal government has any business deciding what private speakers can say about their political views and when they can say it.
As Justice Anthony Kennedy wrote in a dissenting opinion on an earlier case, “The notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections is antithetical to the First Amendment.”
Congress and the courts have struggled with restrictions on political campaigns for many years. The Supreme Court’s landmark 1976 decision in Buckley v. Valeo upheld bans on campaign contributions by corporations and labor unions and limitations on individual contributions to candidates, but it overturned, on free-speech grounds, limits on how much a candidate could spend on his own campaign.
The completely unintended results included the ability of billionaire candidates to sidestep political party organizations (arguably a good thing, but unintended nonetheless) and the development of political action committees, or PACs, that bundle individuals’ contributions into substantial amounts in a way that increased the influence of “special interests.” McCain-Feingold then sought to restrain such influence by directly restricting political speech, among other steps.
There is a good chance the Supreme Court will throw out those restrictions later this year, and good riddance. Restrictions on campaign communication leave speech and press freedom to those who own presses, or their electronic equivalent. The Constitution has banned such restrictions since the first days of the Republic. It is time for the nation’s highest court to clearly say so.