Congress, not court, opened big-money floodgates

Posted Online: April 22, 2014, 11:00 pm
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By John Donald O'Shea
For liberals/progressives, the U.S. Supreme Court's Citizens United decision is the devil incarnate. Articles and letters litter these pages erroneously claiming that the court's 2010 decision "allowed unlimited money to flow to super PACs."

But that is not what Citizens United held. Nor is it what Citizens United was all about. It is a pathetic mischaracterization by people who either haven't bothered to read the case or, if they had, were clueless as to what they were reading. Justice John Paul Steven's dissenting opinion (in which all four liberals concurred) made this unmistakably clear.

"The real issue in this case concerns how ... (Citizens United) may finance its electioneering. Citizens United is a wealthy nonprofit corporation (not a PAC) that (also) runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used (the PAC's assets) to televise and promote 'Hillary: The Movie' wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the ... primary election. ... All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period."

Justice Steven's remarks make crystal clear that Citizens United was not about allowing unlimited money to flow to super PACS. It was about allowing ordinary corporations that were not political action committees to use "funds from the general treasury," to engage in political speech without pre-approval from the Federal Election Commission or any other government entity right up to the election.

The Citizens United corporation (not a PAC) sued to void the ban on "independent expenditures" by the corporation saying it violated the First Amendment.

In January 2008, Citizens United released "Hillary: The Movie," a 90-minute documentary about then-Sen. Hillary Clinton, a 2008 Democrat presidential primary candidate. It depicts interviews with political commentators and other persons, most quite critical of Sen. Clinton. It was released in theaters and on DVD, but Citizens United wanted to make it available through video-on-demand within the 30-day time period prohibited by FEC rules made pursuant to campaign reform law.

At trial, the U.S. District Court had found "there is no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton." It was "susceptible of no other interpretation than to inform the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her."

Again in the words of dissenting Justice Stevens, "Under the Bipartisan Campaign Reform Act of 2002, (Citizens United) could have used (its PACs assets) to televise and promote Hillary ... wherever and whenever it wanted to. As such it was the BCRA itself -- and not the Supreme Court -- that allowed PACs to spend 'wherever and whenever it wanted to' except during the 30 days before the election. Citizen United simply gave corporations that were not PACS the same rights as BCRA gave corporations that were PACs, as well as striking down the '30 day period' prohibition."

To repeat, Citizens United was about allowing a corporation, not a PAC, to engage in political speech at any time without government pre-approval.

What liberals have made no effort to understand is that while PAC corporations and media corporations were allowed to "speak" by BCRA, business corporations and unions were prohibited from speaking (from making expenditures for "electioneering communication" or for speech "expressly advocating the election or defeat of a candidate") at any time. The Supreme Court simply held that business corporations, and unions, have the same political rights under the First Amendment as corporate PACs.

The court noted that media corporations (radio, TV and cable) have "immense aggregations of wealth," accumulated "with the help of the corporate form." The court's holding gives non-media corporations the same right of free speech as media corporations. In doing so, the court noted the perversity if BCRA:

"The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election."

Thus, the following acts would all be felonies under that section: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a website telling the public to vote for a presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship."

Yet at the same time, BRCA permitted PACs, non-corporate billionaires, and corporate mega-media conglomerates to do the same.

The bottom line of the court's analysis is this: The First Amendment "'has its fullest and most urgent application' to speech uttered during a campaign for political office. ...

"Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."

In a country where special interest groups can use their wealth and speak on behalf of candidates who promise to pass laws to ameliorate perceived "corporate excesses," corporations must be able to speak to defend themselves, and to oppose candidates and legislation that they see as destructive of their interests and the public interest. If the President can vilify corporations, the First Amendment " requires that they have an equal right to vilify him.
John Donald O'Shea of Moline is a retired circuit court judge.


Local events heading

  Today is Tuesday, Oct. 21, the 294th day of 2014. There are 71 days left in the year.

1864 -- 150 years ago: The weather is discouraging for our great Democratic rally tomorrow, but never mind that. Let our Rock Island people show they can make a big procession themselves, rain or shine.
1889 -- 125 years ago: Apparatus arrived for drilling an artesian well on the premises of George Warner's Atlantic Brewery.
1914 -- 100 years ago: The German army continued its attacks on the allies line near the Belgian coast.
1939 -- 75 years ago: The farm home of Mr. and Mrs. Gus Zachert northwest of Buffalo Prairie, burned to the ground.
1964 -- 50 years ago: WVIK-FM, noncommercial educational radio station at Augustana College, will return to the air tomorrow. The station operates at a power of 10 watts at 90.9 megacycles on the frequency modulation band. The station is operated with a staff of 92 students.
1989 -- 25 years ago: An avenue of lights, 13 Christmas trees strung with more than 44,000 sparkling lights, will expand the Festival of Trees beyond the walls of RiverCenter in downtown Davenport in mid-November.

(More History)