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Context of 'December 15, 1986: Supreme Court Rules that Anti-Abortion Election Flyers Protected by Free Speech'

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The massive Federal Election Campaign Act (FECA) is signed into law by President Nixon. (The law is commonly thought of in the context of 1971, when Congress passed it, but Nixon did not sign it into law for several months.) The law is sparked by a rising tide of anger among the public, frustrated by the Vietnam War and the variety of movements agitating for change. The campaign watchdog organization Common Cause sued both the Democratic and Republican National Committees for violating the Federal Corrupt Practices Act (FCPA—see 1925), and though it lost the suit, it exposed the flaws and limitations of the law to the public. Common Cause then led a push to improve campaign finance legislation, aided by the many newly elected and reform-minded members of Congress. FECA repeals the toothless FCPA and creates a comprehensive framework for the regulation of federal campaign financing, from primaries and runoffs to conventions and general elections. The law requires full and timely disclosure of donations and expenditures, and provides broad definitions of both. It sets limits on media advertising as well as on contributions from candidates and their family members. The law permits unions and corporations to solicit voluntary contributions from members, employees, and stockholders, and allows union and corporate treasury money to be used for operating expenses for political action committees (PACs) or for voter drives and the like. It bans patronage or the promise of patronage, and bans contracts between a candidate and any federal department or agency. It establishes strict caps on the amounts individuals can contribute to their own campaigns—$50,000 for presidential and vice-presidential candidates, $35,000 for Senate candidates, and $25,000 for House candidates. It establishes a cap on television advertising at 10 cents per voter in the last election, or $50,000, whichever is higher. [Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Federal Election Commission, 4/2008 pdf file] The difference before and after FECA is evident. Congressional campaign spending reportage from 1968 claimed only $8.5 million, while in 1972, Congressional campaign spending reports will soar to $88.9 million. [Federal Elections Commission, 1998]

Entity Tags: Richard M. Nixon, Federal Corrupt Practices Act, Federal Election Campaign Act of 1972, Common Cause

Timeline Tags: Civil Liberties

In the aftermath of the Watergate scandal (see August 8, 1974), amendments to the Federal Election Campaign Act (FECA—see February 7, 1972) provide the option for full public financing for presidential general elections, matching funds for presidential primaries, and public expenditures for presidential nominating conventions. The amendments also set spending limits on presidential primaries and general elections as well as for House and Senate primaries. The amendments give some enforcement provisions to previously enacted spending limits on House and Senate general elections. They set strict spending guidelines: for presidential campaigns, each candidate is limited to $10 million for primaries, $20 million for general elections, and $2 million for nominating conventions; Senatorial candidates are limited to $100,000 or eight cents per eligible voter, whichever is higher, for primaries, and higher limits of $150,000 or 12 cents per voter for general elections; House candidates are limited to $70,000 each for primaries and general elections. Loans are treated as contributions. The amendments create an individual contribution limit of $1,000 to a candidate per election and a PAC (political action committee) contribution limit of $5,000 to a candidate per election (this provision will trigger what the Center for Responsive Politics will call a “PAC boom” in the late 1970s). The total aggregate contributions from an individual are set at $25,000 per year. Candidates face further restrictions on how much personal wealth they can contribute to their own campaign. The 1940 ban on contributions from government employees and contract workers (see 1940) is repealed, as are the 1971 limitations on media spending. Perhaps most importantly, the amendments create the Federal Election Commission (FEC) to oversee and administer campaign law. (Before, enforcement and oversight responsibilities were spread among the Clerk of the House, the Secretary of the Senate, and the Comptroller General of the United States General Accounting Office (GAO), with the Justice Department responsible for prosecuting violators (see 1967).) The FEC is led by a board of six commissioners, with Congress appointing four of those commissioners and the president appointing two more. The Secretary of the Senate and the Clerk of the House are designated nonvoting, exofficio commissioners. [Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file] Part of the impetus behind the law is the public outrage over the revelations of how disgraced ex-President Nixon’s re-election campaign was funded, with millions of dollars in secret, illegal corporate contributions being funneled into the Nixon campaign. [Campaign Finance Timeline, 1999; Connecticut Network, 2006 pdf file]

Entity Tags: Center for Responsive Politics, Federal Election Campaign Act of 1972, Federal Election Commission, US Department of Justice

Timeline Tags: Civil Liberties

The Supreme Court case Buckley v. Valeo, filed by Senator James L. Buckley (R-NY) and former Senator Eugene McCarthy (D-WI) against the Secretary of the Senate, Francis R. Valeo, challenges the constitutionality of the Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) on free-speech grounds. The suit also named the Federal Election Commission (FEC) as a defendant. A federal appeals court validated almost all of FECA, and the plaintiffs sent the case to the Supreme Court. The Court upholds the contribution limits set by FECA because those limits help to safeguard the integrity of elections. However, the court overrules the limits set on campaign expenditures, ruling: “It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions… limit political expression at the core of our electoral process and of First Amendment freedoms.” One of the most important aspects of the Supreme Court’s ruling is that financial contributions to political campaigns can be considered expressions of free speech, thereby allowing individuals to essentially make unrestricted donations. The Court implies that expenditure limits on publicly funded candidates are allowable under the Constitution, because presidential candidates may disregard the limits by rejecting public financing (the Court will affirm this stance in a challenge brought by the Republican National Committee in 1980).
Provisions of 'Buckley' - The Court finds the following provisions constitutional:
bullet Limitations on contributions to candidates for federal office;
bullet Disclosure and record-keeping provisions; and
bullet The public financing of presidential elections.
However, the Court finds these provisions unconstitutional:
bullet Limitations on expenditures by candidates and their committees, except for presidential candidates who accept public funding;
bullet The $1,000 limitation on independent expenditures;
bullet The limitations on expenditures by candidates from their personal funds; and
bullet The method of appointing members of the FEC, holding that as the method stands, it violates the principle of separation of powers.
In May 1976, following the Court’s ruling, the FEC will reconstitute its board with six presidential appointees after Senate confirmation. [Federal Elections Commission, 3/1997; Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Casebriefs, 2012]
No Clear Authors - The opinion is labeled per curiam, a term usually reserved for brief and minor Court decisions when authorship of an opinion is less relevant. It is unclear exactly which Justices write the opinion. Most Court observers believe Justice William Brennan writes the bulk of the opinion, but Brennan’s biographers will later note that sections of the opinion are authored by Chief Justice Warren Burger and Justices Potter Stewart, Lewis Powell, and William Rehnquist. The opinion is an amalgamation of multiple authors, reflecting the several compromises made in the resolution of the decision. [New Yorker, 5/21/2012]
Criticism of 'Buckley' - Critics claim that the ruling enshrines the principle of “money equals speech.” The ruling also says that television and radio advertisements that do not expressly attack an individual candidate can be paid for with “unregulated” funds. This leads organizations to begin airing “attack ads” that masquerade as “issue ads,” ostensibly promoting or opposing a particular social or political issue and avoiding such words as “elect” or “defeat.” [National Public Radio, 2012] In 1999, law professor Burt Neuborne will write: “Buckley is like a rotten tree. Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.” Neuborne will write that his preference goes towards reasonable federal regulations of spending and contributions, but “any change would be welcome” in lieu of this decision, and even a completely deregulated system would be preferable to Buckley’s legal and intellectual incoherence. [New York Times, 5/3/2010] In 2011, law professor Richard Hasen will note that while the Buckley decision codifies the idea that contributions are a form of free speech, it also sets strict limitations on those contributions. Calling the decision “Solomonic,” Hasen will write that the Court “split the baby, upholding the contribution limits but striking down the independent spending limit as a violation of the First Amendment protections of free speech and association.” Hasen will reflect: “Buckley set the main parameters for judging the constitutionality of campaign finance restrictions for a generation. Contribution limits imposed only a marginal restriction on speech, because the most important thing about a contribution is the symbolic act of contributing, not the amount. Further, contribution limits could advance the government’s interest in preventing corruption or the appearance of corruption. The Court upheld Congress’ new contribution limits. It was a different story with spending limits, which the Court said were a direct restriction on speech going to the core of the First Amendment. Finding no evidence in the record then that independent spending could corrupt candidates, the Court applied a tough ‘strict scrutiny’ standard of review and struck down the limits.” [Slate, 10/25/2011] In 2012, reporter and author Jeffrey Toobin will call it “one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.” [New Yorker, 5/21/2012]

Entity Tags: Federal Election Campaign Act of 1972, Federal Election Commission, James Buckley, Jeffrey Toobin, US Supreme Court, Eugene McCarthy, Lewis Powell, Potter Stewart, Burt Neuborne, William Rehnquist, Warren Burger, Richard L. Hasen, William Brennan

Timeline Tags: Civil Liberties

Amendments to the 1971 Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) passed by Congress after the controversial Buckley ruling by the Supreme Court (see January 30, 1976) bring FECA into conformity with the Court’s decision. The amendments repeal expenditure limits except for presidential candidates who accept public funding, and revise the provisions governing the appointment of commissioners to the Federal Election Commission (FEC). The amendments also limit the scope of PAC fundraising by corporations and labor unions. The amendments limit individual contributions to national political parties to $20,000 per year, and individual contributions to a PAC to $5,000 per year. [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 pdf file] However, the Constitution restricts what Congress can, or is willing, to do, and the amendments are relatively insignificant. [Campaign Finance Timeline, 1999]

Entity Tags: Federal Election Commission, Federal Election Campaign Act of 1972, US Supreme Court

Timeline Tags: Civil Liberties

The Supreme Court, in the case of First National Bank of Boston v. Bellotti, rules 5-4 that corporations have the First Amendment right to make contributions in order to influence political processes. Writing for the majority, Justice Lewis Powell finds that under the recent Buckley ruling (see January 30, 1976), corporate political donations are protected speech. Powell’s opinion finds that a Massachusetts criminal statute prohibiting corporations from spending money for the purpose of “influencing or affecting” voters’ opinions is not legitimate. The split among the justices is unusual, with Powell, a conservative, being joined by two more conservatives, Chief Justice Warren Burger and Potter Stewart, and liberals Harry Blackmun and John Paul Stevens. The four dissenters are liberals William Brennan and Thurgood Marshall, and conservatives Byron White and William Rehnquist. [FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012; Moneyocracy, 2/2012] Rehnquist’s standalone dissent advocates for far stricter controls on corporate spending in elections than most of the other justices’ dissents, with Rehnquist writing that such spending could “pose special dangers in the political sphere.” [Reclaim Democracy, 4/26/1978; FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012]

Entity Tags: Lewis Powell, Byron White, John Paul Stevens, William Rehnquist, Warren Burger, Harry Blackmun, William Brennan, US Supreme Court, Potter Stewart, Thurgood Marshall

Timeline Tags: Civil Liberties

The Supreme Court rules in Federal Election Commission v. Massachusetts Citizens for Life that an anti-abortion organization can print flyers promoting “pro-life” candidates in the weeks before an election, and that the portion of the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976) that bars distribution of such materials to the general public restricts free speech. In September 1978, the Massachusetts Citizens For Life (MCFL) spent almost $10,000 printing flyers captioned “Everything You Need to Vote Pro-Life,” which included information about specific federal and state candidates’ positions on abortion rights, along with exhortations to “vote pro-life” and “No pro-life candidate can win in November without your vote in September.” The Federal Election Commission (FEC) ruled that MCFL’s expenditures violated FECA’s ban on corporate spending in connection with federal elections. A Massachusetts district court ruled against the FEC, finding that the flyer distribution “was uninvited by any candidate and uncoordinated with any campaign” and the flyers fell under the “newspaper exemption” of the law. Moreover, the court found, FECA’s restrictions infringed on MCFL’s freedom of speech (see January 30, 1976 and April 26, 1978). An appeals court reversed much of the district court’s decision, but agreed that the named provision of FECA violated MCFL’s free speech rights. The FEC appealed to the Supreme Court. By a 5-4 vote, the Court affirms that FECA’s prohibition on corporate expenditures is unconstitutional as applied to independent expenditures made by a narrowly defined type of nonprofit corporation such as MCFL. The Court writes that few organizations will be impacted by its decision. The majority opinion is written by Justice William Brennan, a Court liberal, and joined by liberal Thurgood Marshall and conservatives Lewis Powell, Antonin Scalia, and (in part) by Sandra Day O’Connor. Court conservatives William Rehnquist and Byron White, joined by liberals Harry Blackmun and John Paul Stevens, dissent with the majority, saying that the majority ruling gives “a vague and barely adumbrated exception [to the law] certain to result in confusion and costly litigation.” [Federal Election Commission, 2011; Moneyocracy, 2/2012]

Entity Tags: Federal Election Commission, William Rehnquist, Antonin Scalia, Federal Election Campaign Act of 1972, US Supreme Court, William Brennan, Sandra Day O’Connor, Harry Blackmun, John Paul Stevens, Thurgood Marshall, Massachusetts Citizens for Life, Byron White, Lewis Powell

Timeline Tags: Civil Liberties

The Senate approves bipartisan legislation, the so-called “Stealth PAC” bill, that requires secretive tax-exempt organizations that raise and spend money on political activities to reveal their donors and expenditures. The so-called “527” organizations have flourished because until now, Section 527 of the Internal Revenue Code has protected both their nonprofit status and their right to keep their donors and funding information secret (see 2000 - 2005). President Clinton will sign the bill into law. It is the first major legislative change in American campaign finance law in two decades (see January 8, 1980). Under the new law, Section 527 organizations raising over $25,000 a year must comply with federal campaign law, file tax returns, disclose the identities of anyone contributing over $200, and report expenditures in excess of $500. That information will be reported to the IRS every three months during an election year, and the information will be posted on the Internet. The bill takes effect as soon as Clinton signs it into law.
Passed Despite Republican Opposition - The House passed the bill on a 385-39 vote; only six Senate Republicans vote against the bill. Senate and House Republican leaders have blocked the bill for months. Clinton says, “Passage of this bill proves that public interest can triumph over special interests,” and urges Congress to pass a more comprehensive overhaul of campaign finance law. Senator Russ Feingold (D-WI) says, “I’m not pretending we don’t have other loopholes to close, but those groups that have found this an easy, painless way to go on the attack are now going to have to scramble to figure out different ways.” Some ways that groups will avoid the requirements of the new law are to reorganize themselves as for-profit organizations—thus losing their tax exemptions—or trying to reorganize as other types of nonprofits. Many expect donors to rush big contributions to these 527 groups before the new law takes effect. Mike Castle (R-DE), a House Republican who supports the bill, says, “I am sure that the phones are ringing over on K Street right now about how to get money into the 527s before they are eliminated.” Senator Mitch McConnell (R-KY), who helped Senate Republicans block the bill and who voted no on its passage, now calls it a “relatively benign bill,” downplaying his stiff opposition to the bill and to campaign finance regulation in general. McConnell advised Republicans up for re-election in November 2000 to vote yes for the bill “to insulate them against absurd charges that they are in favor of secret campaign contributions or Chinese money or Mafia money.” McConnell explains that he voted against the bill because it infringes on freedom of speech (see December 15, 1986). Governor George W. Bush (R-TX), the GOP’s presidential candidate, issues a statement supporting the bill: “As I have previously stated, I believe these third-party groups should have to disclose who is funding their ads. As the only candidate to fully disclose contributors on a daily basis, I have always been a strong believer in sunshine and full disclosure.” Bush defeated Republican challenger John McCain (R-AZ) in part because of the efforts of Republicans for Clean Air, a 527 group headed by Bush financier Sam Wyly and which spent $2.5 million attacking McCain’s environmental record (see March 2000 and After). McCain helped push the current bill through the Senate, and says: “This bill will not solve what is wrong with our campaign finance system. But it will give the public information regarding one especially pernicious weapon used in modern campaigns.”
527s Used by Both Parties - Both Democrats and Republicans have created and used 527 groups, which are free from federal oversight as long as they do not advocate for or against a specific candidate. The organizations use donations for polling, advertising, telephone banks, and direct-mail appeals, but are not subject to federal filing or reporting rules as long as they do not advocate the election or defeat of a specific candidate. Some groups, such as the Republican Majority Issues Committee, a 527 organization aligned with House Majority Leader Tom DeLay (R-TX), intend to continue functioning as usual even after the bill is signed into law, while they examine their legal options. The committee head, Karl Gallant, says his organization will “continue on our core mission to give conservative voters a voice in the upcoming elections.” The Republican Majority Issues Committee is considered DeLay’s personal PAC, or political action committee; it is expected to funnel as much as $25 million into closely contested races between now and Election Day. Gallant says the organization will comply with the new law, but complains, “We are deeply concerned that Congress has placed the regulation of free speech in the hands of the tax collectors.” He then says: “We’re not going anywhere. You will have RMIC to amuse and delight you throughout the election cycle.” The Sierra Club’s own 527 organization, the Environmental Voter Education Campaign, says it will also comply “eagerly” with the new law, and will spend some $8 million supporting candidates who match the Sierra Club’s pro-environmental stance. “We will eagerly comply with the new law as soon as it takes effect,” says the Sierra Club’s Dan Weiss. “But it’s important to note that while we strongly support the passage of this reform, 527 money is just the tip of the soft-money iceberg. Real reform would mean banning all soft-money contributions to political parties.” Another 527 group affected by the new law is Citizens for Better Medicare, which has already spent $30 million supporting Republican candidates who oppose a government-run prescription drug benefit. Spokesman Dan Zielinski says the group may change or abandon its 527 status in light of the new law. “The coalition is not going away,” he says. “We will comply with whatever legal requirements are necessary. We’ll do whatever the lawyers say we have to do.” A much smaller 527, the Peace Voter Fund, a remnant of the peace movement of the 1970s and 80s, says it intends to engage in voter education and issue advocacy in about a dozen Congressional races. Executive director Van Gosse says the group will follow the new law and continue as before: “Disclosure of donors is not a major issue for us. So we’ll just say to donors in the future that they will be subject to federal disclosure requirements. It’s no biggie.” [New York Times, 6/30/2000; OMB Watch, 4/1/2002; Huffington Post, 9/28/2010]

Entity Tags: Karl Gallant, John McCain, Environmental Voter Education Campaign, Dan Zielinski, Dan Weiss, Citizens for Better Medicare, Van Gosse, US Senate, William Jefferson (“Bill”) Clinton, George W. Bush, Republican Majority Issues Committee, Republicans for Clean Air, Peace Voter Fund, Mike Castle, Mitch McConnell, Tom DeLay, Sierra Club, Sam Wyly, Russell D. Feingold

Timeline Tags: Civil Liberties

Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy.Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy. [Source: Associated Press / Politico]The Supreme Court rules 5-4 that corporate spending in political elections may not be banned by the federal government. The case is Citizens United v. Federal Election Commission, No. 08-205. The Court is divided among ideological lines, with the five conservatives voting against the four moderates and liberals on the bench. The decision overrules two precedents about the First Amendment rights of corporations, and rules that corporate financial support for a party or candidate qualifies as “freedom of speech” (see March 11, 1957, January 30, 1976, May 11, 1976, April 26, 1978, January 8, 1980, November 28, 1984, December 15, 1986, June 26, 1996, June 25, 2007, and June 26, 2008). The majority rules that the government may not regulate “political speech,” while the dissenters hold that allowing corporate money to, in the New York Times’s words, “flood the political marketplace,” would corrupt the democratic process. The ramifications of the decision will be vast, say election specialists. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010] In essence, the ruling overturns much of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold law (BCRA—see March 27, 2002). The ruling leaves the 1907 ban on direct corporate contributions to federal candidates and national party committees intact (see 1907). The ban on corporate and union donors coordinating their efforts directly with political parties or candidates’ campaigns remains in place; they must maintain “independence.” Any corporation spending more than $10,000 a year on electioneering efforts must publicly disclose the names of individual contributors. And the ruling retains some disclosure and disclaimer requirements, particularly for ads airing within 30 days of a primary or 60 days of a general election. The Los Angeles Times writes: “The decision is probably the most sweeping and consequential handed down under Chief Justice John G. Roberts Jr. And the outcome may well have an immediate impact on this year’s mid-term elections to Congress.” [Los Angeles Times, 1/21/2010; OMB Watch, 1/27/2010; Christian Science Monitor, 2/2/2010; National Public Radio, 2012]
Unregulated Money Impacts Midterm Elections - The decision’s effects will be felt first on a national level in the 2010 midterm elections, when unregulated corporate spending will funnel millions of dollars from corporate donors into Congressional and other races. President Obama calls the decision “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.” Evan Tracey of the Campaign Media Analysis Group, which tracks political advertising, says the Court “took what had been a revolving door and took the door away altogether. There was something there that slowed the money down. Now it’s gone.” [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010]
Broadening in Scope - According to reporter and author Jeffrey Toobin, CU lawyer Theodore Olson had originally wanted to present the case as narrowly as possible, to ensure a relatively painless victory that would not ask the Court to drastically revise campaign finance law. But according to Toobin, the conservative justices, and particularly Chief Justice Roberts, want to use the case as a means of overturning much if not all of McCain-Feingold (see May 14, 2012). In the original argument of the case in March 2009 (see March 15, 2009), Deputy Solicitor General Malcolm Stewart unwittingly changed the scope of the case in favor of a broader interpretation, and gave Roberts and the other conservative justices the opportunity they may have been seeking. [New Yorker, 5/21/2012]
Majority Opinion Grants Corporations Rights of Citizens - The majority opinion, written by Justice Anthony Kennedy, reads in part: “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 First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” In essence, Kennedy’s ruling finds, corporations are citizens. The ruling overturns two precedents: 1990’s Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates (see March 27, 1990) in its entirety, and large portions of 2003’s McConnell v. Federal Election Commission (see December 10, 2003), which upheld a portion of the BCRA that restricted campaign spending by corporations and unions. Before today’s ruling, the BCRA 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. The law was restricted in 2007 by a Court decision to apply only to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate” (see June 25, 2007).
Encroachment on Protected Free Speech - Eight of the nine justices agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements; Justice Clarence Thomas is the only dissenter on this point. Kennedy writes, “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Kennedy’s opinion states that if the restrictions remain in place, Congress could construe them to suppress political speech in newspapers, on television news programs, in books, and on the Internet. Kennedy writes: “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. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Fiery Dissent - Justice John Paul Stevens, the oldest member of the court, submits a fiery 90-page dissent that is joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Kennedy is joined by Roberts and fellow Associate Justices Samuel Alito, Antonin Scalia, and Thomas, though Roberts and Alito submit a concurring opinion instead of signing on with Kennedy, Scalia, and Thomas. “The difference between selling a vote and selling access is a matter of degree, not kind,” Stevens writes in his dissent. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Stevens writes that the Court has long recognized the First Amendment rights of corporations, but the restrictions struck down by the decision are moderate and fair. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Speaking from the bench, Stevens calls the ruling “a radical change in the law… that dramatically enhances the role of corporations and unions—and the narrow interests they represent—in determining who will hold public office.… Corporations are not human beings. They can’t vote and can’t run for office,” and should be restricted under election law. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Case Originated with 2008 Political Documentary - The case originated in a 2008 documentary by the right-wing advocacy group Citizens United (CU), called Hillary: The Movie (see January 10-16, 2008). The film, a caustic attack on then-Democratic presidential candidate Hillary Clinton (D-NY) and Democrats in general, was released for public viewing during the 2008 Democratic presidential primaries. When the Federal Election Commission (FEC) won a lawsuit against CU, based on the FEC’s contention that broadcasting the film violated McCain-Feingold, the group abandoned plans to release the film on a cable video-on-demand service and to broadcast television advertisements for it. CU appealed the ruling to the Supreme Court, and most observers believed the Court would decide the case on narrow grounds, not use the case to rewrite election law and First Amendment coverage. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010; Associated Press, 1/21/2010; Christian Science Monitor, 2/2/2010]
Case Brought in Order to Attack Campaign Finance Law - Critics have said that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign, an opponent of the decision, says: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” CU head David Bossie confirms this contention, saying after the decision: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010]

Entity Tags: US Supreme Court, Theodore (“Ted”) Olson, Sonia Sotomayor, Clarence Thomas, Anthony Kennedy, Antonin Scalia, Citizens United, Bipartisan Campaign Reform Act of 2002, Barack Obama, Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, New York Times, Nick Nyhart, Evan Tracey, David Bossie, Hillary Clinton, Jeffrey Toobin, Federal Election Commission, John Paul Stevens, Malcolm Stewart, John G. Roberts, Jr, Los Angeles Times

Timeline Tags: Civil Liberties

Campaign finance lawyers tell the New York Times that a loophole in the recent Citizens United Supreme Court decision, a decision that allows corporations and labor unions to spend unlimited amounts on political advertising (see January 21, 2010), could allow corporations and unions to make their donations anonymously and avoid the disclosure requirements that the Citizens United ruling left in place. Two earlier Court decisions, the 1986 Federal Election Commission v. Massachusetts Citizens for Life (see December 15, 1986) and the 2007 Wisconsin Right to Life rulings (see June 25, 2007), could be used in tandem with the Citizens United decision to make it possible for corporations and unions to donate anonymously to trade organizations and other nonprofit entities. Those entities could then use the money to finance political advertisements. Those nonprofit groups, usually called 501(c) groups after the applicable portion of the IRS tax code, had been allowed to finance so-called “electioneering communications” long before the Citizens United decision, but until now, corporations have not been allowed to spend unlimited amounts of money advocating for a candidate’s election or defeat. Nor could they donate money to nonprofit groups that engage in “electioneering communications.” The 1986 decision gave some nonprofit organizations the right to advertise for or against political candidates, but banned corporations and unions from giving money to those groups. The Citizens United decision overturned that ban. And the 2006 ruling allowed corporations to spend money on “electioneering communications.” Now, experts like corporate lawyer Kenneth A. Gross, a former associate general counsel for the Federal Election Commission (FEC), believe that corporations will donate heavily and anonymously to those “third party” groups to buy political advertising. “Clearly, that’s where the action’s going to be,” Gross says. Corporations that spend money directly on political advertising still have to identify themselves in the ads, Gross says, and report their donors. Many corporations do not want to identify themselves in such advertisements. The nonprofit groups are an attractive alternative to public disclosure, Gross says. Congressional Democrats call the loophole dangerous, and have proposed legislation that would require nonprofit groups to disclose their donors for political advertising (see February 11, 2010). The Times states, “It is impossible to know whether corporations or unions are taking advantage of the new freedom to funnel pro- or anti-candidate money through nonprofit organizations.” [New York Times, 2/27/2010]

Entity Tags: New York Times, US Supreme Court, Kenneth A. Gross

Timeline Tags: Civil Liberties

Jeffrey Toobin in 2007.Jeffrey Toobin in 2007. [Source: Wikimedia]Author and political pundit, Jeffrey Toobin, publishes an in-depth article for the New Yorker showing that Chief Justice John Roberts engineered the 2010 Citizens United Supreme Court decision (see January 21, 2010), moving it from a case that could well have been considered and decided on a relatively narrow basis to a sweeping decision that reformed the nation’s campaign finance structure. Toobin writes that the underlying issue was quite narrow: the conservative advocacy organization Citizens United (CU) wanted to run a documentary attacking presidential candidate Hillary Clinton (D-NY) on “video on demand” cable broadcast (see January 10-16, 2008). Under the McCain-Feingold campaign finance legislation (see March 27, 2002 and December 10, 2003), the Federal Election Commission (FEC) disallowed the broadcast because it would come 30 days or less before primary elections. CU challenged the decision in court (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009). [New Yorker, 5/21/2012] Toobin’s article is an excerpt from his forthcoming book The Oath: The Obama White House vs. The Supreme Court. It is dated May 21, but appears on the New Yorker’s Web site on May 14. [Tom Goldstein, 5/14/2012]
Oral Arguments - During the initial arguments (see March 15, 2009), attorney Theodore Olson, the former solicitor general for the Bush administration, argued a narrow case: that McCain-Feingold’s prohibitions only applied to television commercials, not to full-length documentary films. Olson argued, “This sort of communication was not something that Congress intended to prohibit.” Toobin writes: “Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.… If the justices had resolved the case as Olson had suggested, today Citizens United might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law.” However, Justice Antonin Scalia, one of the most vocal opponents of campaign finance restrictions on the Court (see September 26, 1986, December 15, 1986, March 27, 1990, June 26, 1996, June 16, 2003, December 10, 2003, and June 25, 2007), seemed disappointed in the limited nature of Olson’s argument, Toobin writes. The oral arguments expand the case far beyond Olson’s initial position. Olson’s initial intention was to narrow the case so that the Court would not have to expand its scope to find in favor of CU.
Change of Scope - Ironically, the government’s lead lawyer, Deputy Solicitor General Malcolm Stewart, may well have changed the scope of the case in favor of a broader interpretation. Traditionally, lawyers with the solicitor general (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. Toobin writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who had clerked for former Justice Harry Blackmun and a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. But, Toobin writes, Stewart fell into a trap, prompted by Justice Samuel Alito’s pointed questioning about the government’s ability to ban or censor printed materials—i.e. books—under McCain-Feingold—and follow-up questions by Roberts and Justice Anthony Kennedy, that led him to claim incorrectly that the government could indeed censor books under the law. Stewart’s incorrect assertion gave Roberts and his colleagues the chance to overturn McCain-Feingold on the grounds of the First Amendment right to freedom of speech.
Second Arguments - The second arguments were held on September 9, 2009 (see September 9, 2009). The concept of “money equals speech” goes back at least as far as the 1976 Buckley decision (see January 30, 1976), and the five conservative justices were poised to stretch that definition much farther than has previously been done.
Majority Opinion - Toobin writes that Roberts’s decision was then to decide “how much he wanted to help the Republican Party. Roberts’s choice was: a lot.” Roberts assigned the opinion to Kennedy, the “swing” justice who had already written an expansive opinion gutting almost a century’s worth of campaign finance legislation. Kennedy tends to “swing wildly in one direction or another,” Toobin writes, “an extremist—of varied enthusiasms.” In the area of campaign finance, he has consistently “swung” to the conservative side of the argument. He is, Toobin writes, “extremely receptive to arguments that the government had unduly restricted freedom of speech—especially in the area of campaign finance.” Moreover, Kennedy enjoys writing controversial and “high-profile” opinions. Toobin says that Roberts’s choice of Kennedy to write the opinion was clever: Roberts came onto the Court promising to conduct himself with judicial modesty and a respect for precedent. Kennedy, with his draft opinion at the ready, was a better choice to write an opinion that lacked either modesty or a respect for Court precedence. Roberts, Toobin writes, “obtained a far-reaching result without leaving his own fingerprints.” Kennedy, in an often-eloquent opinion that did not deal with the gritty reality of the Citizens United case, stated that any restraint of money in a campaign risked infringing on free speech. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.… By taking the right to speak from some and giving it to others, the government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Kennedy also reaffirmed the Court’s perception that corporations deserve the same First Amendment protections enjoyed by individuals. Kennedy’s opinion found, in Toobin’s words, that “[t]he Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing.” One of the only provisions remaining in McCain-Feingold after Kennedy’s opinion was the ban on direct corporate contributions to candidates.
Fiery Dissent from 'Liberal' Stevens - Toobin reminds readers that the elder statesman of the “liberal” wing of the Court at the time, John Paul Stevens, is a “moderate Midwestern Republican,” one of the last of a “vanishing political tradition.” Though Stevens’s views have migrated left on some issues, such as the death penalty, Toobin writes that the perception of Stevens as a Court liberal is mostly because of the Court’s steady progression to the right. Toobin writes that the 90-year-old Stevens has grown dispirited in recent years, as the conservative wing of the Court, led by Scalia, Alito, and Roberts with Clarence Thomas and often Kennedy in tow, overturned one Court precedent after another. “The course of Citizens United represented everything that offended Stevens most about the Roberts Court,” Toobin writes. Much of Stevens’s objections to the Roberts Court are rooted in procedure; he is deeply troubled by the Citizens United case being transformed by Roberts and his conservative colleagues from a narrowly focused case about a single McCain-Feingold provision to what Toobin calls “an assault on a century of federal laws and precedents. To Stevens, it was the purest kind of judicial activism.” Stevens wrote in his angry dissent, “Five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” A simple change in the McCain-Feingold law to disallow its application to full-length documentaries the CU case was sparked by, or even to nonprofit organizations such as CU, would have been appropriate, Stevens wrote. He penned a 90-page dissent, the longest of his career, blasting almost every aspect of Kennedy’s decision, starting with Kennedy’s ignoring of precedent and continuing with a refutation of Kennedy’s perception of the Constitutional definitions of “censorship” and “free speech.” Stevens was angered by Kennedy’s equivocation of corporations with people. “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” he wrote. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Congress has drawn significant distinctions between corporations and people for over a century, he wrote: “at the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act” (see 1907). He even challenged Kennedy’s stated fear that the government might persecute individuals’ speech based on “the speaker’s identity,” sarcastically noting that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ [a famed Japanese propagandist] during World War II the same protection as speech by Allied commanders.” According to Toobin, Stevens’s law clerks disliked the dated reference, but Stevens, a Navy veteran, insisted on keeping it. Toobin writes that “Stevens’s conclusion was despairing.” Stevens concluded: “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.… It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Toobin notes that as “impressive” as Stevens’s dissent may have been, it was Kennedy’s opinion that “was reshaping American politics.”
Reaction - In his State of the Union address six days after the verdict, President Obama referenced Justice Ruth Bader Ginsburg’s concerns about foreign influence in American politics by saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections” (see January 27-29, 2010). Democrats cheered as Obama said, “I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities.” Alito’s mouthing of the words “not true” stirred some controversy; Toobin notes that Alito was technically correct, as “Kennedy’s opinion expressly reserved the question of whether the ruling applied to foreign corporations.” However, Toobin notes, “as Olson had argued before the justices, the logic of the Court’s prior decisions suggested that foreign corporations had equal rights to spend in American elections.” With the Citizens United decision and a March 2010 decision that allowed for the formation of “super PACs” (see March 26, 2010), the way was clear for what Toobin calls “presidential campaigns in 2012 that were essentially underwritten by single individuals.” He notes the billionaires that almost single-handedly supported Republican presidential candidates (see February 21, 2012, February 16-17, 2012, February 21, 2012, March 26, 2012, and April 22, 2012), and the efforts of organizations like Crossroads GPS that have to date raised tens of millions of dollars for Republican candidates (see May 2, 2012). Toobin believes that the Court will continue to deregulate campaign finance, noting the 2011 decision that invalidated Arizona’s system of public financing that state enacted after a series of campaign finance scandals (see June 27, 2011). He concludes, “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.” [New Yorker, 5/21/2012]
Criticisms of the Article - Toobin’s article will engender significant criticism, from nuanced questioning of particular elements of Toobin’s story (see May 14, 2012) to accusations of outright “fictionalizing” (see May 17, 2012) and “libelous” claims (see May 15-17, 2012).

Entity Tags: Clarence Thomas, US Supreme Court, Citizens United, Barack Obama, Antonin Scalia, Anthony Kennedy, American Crossroads GPS, Tillman Act, Bipartisan Campaign Reform Act of 2002, Theodore (“Ted”) Olson, Ruth Bader Ginsberg, John Paul Stevens, John G. Roberts, Jr, Malcolm Stewart, Jeffrey Toobin, Republican Party, Hillary Clinton, Samuel Alito, Federal Election Commission

Timeline Tags: Civil Liberties

Former Senator Russ Feingold (D-WI) writes an article for the Stanford Law Review discussing the dominance of “big money” in the nation’s elections in the wake of the 2010 Citizens United decision (see January 21, 2010), documenting his belief that the rise in small-donor contributions that put Democrats in office in 2006 and 2008 led to the Citizens United backlash, and calling for sweeping campaign finance reform. Feingold writes, “Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.” Feingold heads Progressives United, an advocacy group that pushes for the overturning of the Citizens United decision and campaign finance legislation.
Background - Feingold gives the background of campaign finance reform in America: the 1907 Tillman Act which banned corporations from spending their money in elections (see 1907), which he says was spurred by the realization that “corporate influence corrupts elections”; the Taft-Hartley Act of 1947, which extended the Tillman ban to labor unions (see June 23, 1947); and more recent legislation, including the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), which Feingold co-authored with Senator John McCain (R-AZ). “And for several election cycles, between 2004 and 2008, our system seemed headed towards more fair and transparent elections,” he writes. “But Citizens United changed everything.” The “road to corruption” in modern elections, he says, began when Democrats in the early 1990s began exploiting a loophole in finance regulation that allowed the creation of “soft money” groups (see January 8, 1980, November 28, 1984, December 15, 1986, and December 10, 2003) that allowed parties to solicit unlimited amounts of donations from corporations, labor unions, and individuals. “This system was corrupting,” Feingold writes. “Senators would solicit gigantic, unregulated contributions from the same corporations that had legislation pending on the Senate floor. Both parties were guilty.” The BCRA plugged the “soft money” loophole. Even as the BCRA began to reform campaign finance practices, Feingold writes, “the same corporate interests that fought McCain-Feingold set to work to dismantle it. In what was clearly an orchestrated effort by opponents of campaign reform (see January 25, 2010), a group called Citizens United produced a movie savaging the record of then-Senator Clinton (see January 10-16, 2008). Ostensibly intended to educate the public about conservative concerns regarding Clinton’s run for the presidency, the film was little more than a legal vehicle to challenge some of the common-sense restrictions enacted by the BCRA (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009). Specifically, the creators of the film sought to challenge the BCRA’s requirement that electioneering communications—commonly known as ‘phony issue ads’ that attack a candidate in the days before the election, but don’t explicitly advocate voting for or against that candidate—be subject to the same disclosure requirements and contribution limits as other campaign ads.” The case was argued on narrow grounds about a specific provision of the BCRA, but the Court’s conservative justices, led by Chief Justice John Roberts, “manipulated the Court’s process to achieve that result” (see May 14, 2012). Justice John Paul Stevens wrote in his dissent to the majority opinion, “[F]ive justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” The ruling, Feingold writes, “created a framework for corruption parallel to ‘soft money.’” Instead of “soft money” organizations, Citizens United led to the creation of the “super PAC” (see March 26, 2010, June 23, 2011, November 23, 2011, January 4, 2012, January 4, 2012, January 13, 2012, and February 20, 2012). It has also called into doubt the legitimacy of US elections themselves, due to the “increasing skepticism about the campaign finance system.” Many voters now believe “that the average participant’s small contribution is irrelevant, and that the average person’s vote is grossly outweighed by the gigantic contributions now allowed.”
Internet Politics and Small-Donor Contributions - In part due to the BCRA, Feingold writes, “[f]or three election cycles, in 2004, 2006, and 2008, our system of campaign financing began to take shape in a way that channeled citizen participation and provided incentive for candidates to turn to the democratic support of online activists and small-dollar contributors.” He cites the 2004 presidential campaign of Howard Dean (D-VT), who went on to chair the Democratic National Committee (DNC), as the first powerful instance of “online organizing,” using the Internet to garner millions of dollars in small donations from individual citizens. In 2008, the presidential campaign of Barack Obama (D-IL) pushed the Dean innovation even further. The Obama campaign “raised a historic amount in small-dollar contributions,” Feingold writes, and created an online platform to engage supporters. All told, the Obama campaign raised $500 million online.
An Ineffective FEC - By 2008, he writes, the Federal Election Commission (FEC) was completely impotent. The agency “has been fatally flawed since the time of its creation—any administrative law professor will point out that a law enforcement commission with an even number of commissioners [six] is probably designed specifically not to enforce the law at all,” he writes. By 2008, the FEC only had two seated commissioners, and in effect was not enforcing campaign laws whatsoever. Even after eventually receiving a full complement of commissioners, he writes, the agency “remains ineffective, as even Democratic violators go unpunished as conservative commissioners remain unwilling, philosophically, to enforce any campaign finance law.”
2012: Corporations Trump Citizens - In 2012, corporate contributions far outweigh small-dollar donations by individuals. “[T]he most prominent actors in the 2012 election cycle are unnamed corporations and a small group of influential—primarily conservative—billionaires.” Seventy percent of registered voters think super PACs should be illegal, according to polls, and the favorability rating of the Court has dropped a significant amount. Overall, Feingold writes, the public is firmly against the Citizens United paradigm of campaign finance. He advocates strong legislation from Congress, fixing the “broken system of presidential public financing,” and replacing the “dysfunctional” FEC “with a true enforcement agency.” The ultimate repair of campaign finance lies with the Court, he says, noting that the Court has a chance to do some early repair with the Montana case it is now considering (see June 25, 2012). Regardless of what the Court does or does not do in the Montana case, he concludes, “[t]oday’s framework for corruption cannot stand.” [Stanford Law Review, 6/14/2012]

Entity Tags: Howard Dean, Bipartisan Campaign Reform Act of 2002, Barack Obama, Citizens United, Hillary Clinton, Russell D. Feingold, Federal Election Commission, John McCain, John G. Roberts, Jr, Stanford Law Review, John Paul Stevens

Timeline Tags: Civil Liberties

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