I’ll take one more go at this.

There is nothing in the statute which prohibits any human being from making any political comment.  If Warren Buffett or George Soros or Ross Perot or Donald Trump or any other person with the resources to do it wants to run an ad or a movie, they’re obviously permitted to do so under the First Amendment.   Nothing that I can see in the statute would prohibit an individual from producing a movie and renting out a theater to show it, either.

I hate slippery slope arguments, but the issue of corporate personhood has been taken to such extremes (note that Rehnquist dissented in Belotti along with Brennan, Marshall, and White) that it’s important to point out that:

- People have limited lifespans.  Corporations don’t.   I think I’m safe in saying that every human being on Fortune’s 500 list will be dead in 120 years.  It’s a reasonable bet that at least 20% of the corporations on the corporate list will still exist in some form.

- People have the right to vote.  Corporations don’t.   I haven’t yet come across anyone arguing that any 18-year-old corporation should be able to cast a ballot, but it’s really not a far leap from free speech to the vote.  (As a sci-fi buff, I’ll also make a prediction that in my lifetime– I’m 37– the SCOTUS is going to have to make a decision on the personhood of an Artificial Intelligence program.  I hope I’m still young enough to see that argument.)

- Even such fundamental rights as equal protection do not fully apply to corporations.  Otherwise the corporate income tax would be held unconstitutional for its different rates and different scope of deductions.

- Corporations, at least in Delaware and Nevada, grant their privately held owners a degree of anonymity that in and of itself is incompatible with modern campaign finance law.  How do you know that each individual shareholder of a corporation is even legally entitled to make a contribution?  I’ve brought this up a couple of times, but it’s a really serious problem, even in the case of nonprofits.  People who are interested in the Second Amendment may be aware that there was actually something of a coup in the leadership of the NRA about 20 years back (on the surface, it may have seemed not much more than a move from Washington DC to the Outer Beltway, but the positions the organization took changed, sometimes dramatically).  What’s the remedy if a dues-paying member, or even a strong minority of dues-paying members, disagrees with the position espoused?

(I should point out that it sometimes seems that 2/3 of what I do during campaigns is write nice letters to would-be donors enclosing uncashed checks that used their corporate or LLC checkbooks by mistake or by ignorance– once I had to write such a letter to the candidate’s daughter, who naturally was not amused.)

As a history nitpicker, I’ll point out that the 1907 Tillman Act is actually almost entirely in sync with modern corporate law.  In 1907, New Jersey and Delaware were still in the race to the bottom for the most lenient corporate laws.  While some other states, like my native Pennsylvania, still required an act of the legislature to form a corporation in 1907, Delaware at least did not.  (New Jersey let Delaware win the race when a liberal do-gooder named Woodrow Wilson got elected governor and got stricter corporate laws passed.)  (I’ll also digress a bit further and state that in 1907 in Pennsylvania, any corporation was entitled to form its own police force, with full powers of armament, arrest, and detention.  These coal and iron police, as they were called, existed until the Great Depression.  But even if you were, say, a corporate grocery, you were entitled to a police force with guns and badges and the whole works.)

Finally, and I think I’m probably on my weakest ground here, since using foreign law, even for comparison, has become a bugaboo, I’d like to direct my fellow Americans’ attention to what’s been going on in Italy for the last few years.   Faced with the problem that Silvio Berlusconi owns all the private network TV stations and most of the newspapers, and with the corollary problem that his opposition would have to pay Berlusconi for airtime to run anti-Berlusconi ads, Italy in its last election simply outlawed TV political advertising.  Whether it made much of an impact on the outcome of the election, it’s hard to say (Berlusconi’s TV news programs are like something out of Orwell– light years beyond the worst things that liberals think about Fox News or conservatives think about MSNBC here), but my Italian relatives reported that for the first time in a long time, they felt like issues, rather than sound-bites, were being discussed.  Having just come off an election that seemed like it was between Sarah Palin and Bill Ayers, it sounds almost like democratic ecstasy.

For more on the distinction between corporate contributions and independent expenditures, I’ve added this post, by CCP President Sean Parnell, which is cross-posted at the Center for Competitive Politics’ website: www.campaignfreedom.org

Continuing campaign finance “reformers” pattern of dramatically misunderstanding what is at stake in Citizens United, E.J. Dionne of the Washington Post yesterday unleashed a hysterical and factually-challenged column in advance of tomorrow’s crucial re-argument in front of the Supreme Court.

Early on, Dionne claims that “The court is considering eviscerating laws that have been on the books since 1907 and 1947 — in two separate cases — banning direct contributions and spending by corporations in federal election campaigns.”

The problem, of course, is that the Supreme Court is not “…considering eviscerating laws that… [ban] direct contributions… by corporations…” Only independent political speech by corporations (and unions) at stake in Citizens United. Claiming otherwise is to show that one has not bothered to let facts get in the way of a good hysterical rant.

Dionne continues his Bizarro World Joe Friday act (”Just leave out the facts, Ma’am”) when he states that there are “…precedents, dating to the 1976 Buckley campaign finance ruling, that the court would set aside if it were to throw out the prohibition on corporate money.” Here again, Dionne gets it completely backward. Buckley very explicitly ruled that independent political spending could not be limited (much less banned) because it poses no threat of corruption — and corruption or the appearance of are the only acceptable reasons for limiting money spent on political speech.

But the greatest twisting of facts is Dionne’s assertion that undoing the Austin decision (and the section of McConnell v. FEC that gave a pass to the “electioneering communications” restrictions in McCain-Feingold) would somehow run counter to precedent, something Chief Justice Roberts pledged a great deal of respect for in his confirmation hearings.

Dionne writes: “…there is one member of the court who has spoken eloquently about the dangers of ignoring precedents.

‘I do think that it is a jolt to the legal system when you overrule a precedent,’ he said. ‘Precedent plays an important role in promoting stability and evenhandedness…’

This careful jurist continued: ‘And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.’ He paraphrased Alexander Hamilton as saying in Federalist 78, ‘To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.’

Chief Justice John Roberts, the likely swing vote in this case, was exactly right when he said these things during his 2005 confirmation hearings. If he uses his own standards, it is impossible to see how he can justify the use of ‘arbitrary discretion’ to discard a well-established system whose construction began with the Tillman Act of 1907.”

Dionne’s error is in believing that overturning Austin would be an upending previous precedent, when in fact it would simply eliminate the decision that stands contrary to almost all other campaign finance precedents. As CCP Chairman Bradley A. Smith wrote previously, “…Austin has long been the odd man out in campaign finance jurisprudence, the case that doesn’t fit the mold.”

And of course Dionne doesn’t trouble himself to find out how things have worked out in the two dozen or so states that allow direct corporate contributions to candidates, let alone independent expenditures.

The general thrust of Dionne’s column, along with most of the “sky is falling” Chicken Littles of the campaign finance “reform” crowd, is that allowing the political speech of corporations and unions to be heard by American citizens represents a grave threat to the republic, presumably because the public might end up misinformed by these speakers (i.e. vote in ways the “reformers” don’t approve of).

Perhaps. But if Dionne is truly concerned about the American public being misinformed on political matters, perhaps he ought to start by applying a little bit of fact-checking to his own writing before he demands that others be excluded from the public arena before they have a chance to misinform?

Well, I’ll agree with you that Pitchfork Ben isn’t exactly my idea of a model Senator, but the history of it is all but irrelevant. I mean, after all, it’s been pretty much proven that the framers of the 14^th Amendment had no intent to grant individual rights to corporations, and yet we’ve kept Santa Clara enshrined as the law of the land for 120 years, and no Justices but Douglas and Black have ever suggested changing it.

There is obviously a distinction between a third party expenditure and a first party expenditure, but I think it is a distinction without a difference. First National Bank v. Belotti was the first of this line of corporate speech cases, and it seems clear to me, rereading it, that the major distinction between Belotti and this Hillary movie case is that in Belotti, the legislation to abolish corporate election expenditures was passed to abolish specific speech– relating to a referendum on a graduated state income tax which businesses like the First National Bank opposed. This case would seem to be equally anti-speech to all sides, as it were, which makes it more of a time, place and manner restriction. There’s a compelling interest in running fair elections, and given the rather appalling history of corporate money in politics, from Standard Oil and the Railroads at the turn of the 20^th Century, to ITT in the Nixon administration (for younger readers, they paid for the Republican National Convention in 1972, in exchange for having antitrust charges dropped) to any number of examples today.

This post expands the scope of the debate and  responds to an outside post by Frank Askin, a Professor of Law and Director of the Constitutional Litigation Clinic at Rutgers Law School, at NJ Voices.

Askin’s piece addresses three alleged shortcomings in the free speech side of Citizens United v. FEC, specifically as defended by noted First Amendment litigator Floyd Abrams on the Bill Moyers Journal Friday.

Askin’s issues are (1) the longstanding ban on corporate political donations, (2) the distinction between member-based union speech and shareholder corporate speech, and (3) the constitutional distinction of “We the People” not bestowing First Amendment rights on corporations.

Center for Competitive Politics Chairman Brad Smith addressed these specific issues at length at a Cato Institute policy debate today with American University law professor and Maryland state Sen. Jamin Raskin. The video is available here and is embedded at the end of this post.

First, as the Center for Competitive Politics has noted several times, the Tillman Act of 1907 is not at issue in this case. The Act banned direct contributions by corporations to candidates, whereas Citizens United is about corporate — and by extension, union — independent expenditures. By definition, candidates have no control over such speech. We’ve also addressed the muddled history of the Tillman Act, which was motivated in part by racist sentiments, and addressed a corporate environment much different than exists today:

The Tillman Act’s sponsor was Sen. “Pitchfork” Benjamin Tillman (D-SC), a notorious racist and proponent of Jim Crow laws. He pushed the corporate contribution ban as a way to kneecap corporations opposed to his agenda because they did not want the added expense of providing separate accommodations for different races or restrictions on hiring black workers.

Second, as Brad Smith has previously blogged about, the argument that corporate independent expenditures are fundamentally different than member-based union expenditures and violate shareholders’ rights doesn’t make sense for at least two reasons: (1) Corporations already spend money on charitable contributions that can have political overtones and direct lobbying that shareholders may disagree with. This is a matter for corporate governance legislation, perhaps requiring management to inform shareholders of political spending, not a matter of broad campaign finance law. (2) This distinction is overkill — incredibly broad. It doesn’t allow ideological corporations that people join precisely to further their political views to speak and also silences closely held corporations in which there are no dissenting shareholders.

Third, Askin suggests that the First Amendment does not apply to corporations, that the Framers somehow decided to leave out a class of people from the “We the People” preamble of the U.S. Constitution. He makes the case, a common refrain of “reformers” that corporations are artificial entities that can amass great wealth. There are several problems with this line of argument: (1) Corporations are associations of people — shareholders, employees, etc.; by affirmingtheir First Amendment right to associate, they do not give up their First Amendment right to free speech.

“Reformers” presumably acknowledge the First Amendment rights of non-profit corporations not covered under Austin, so-called MFCL organizations that are allowed to use their general treasuries for independent expenditures, and media corporations like the New York Times Co. It may have been defensible in the 1970s to only allow a media exemption for the establishment press, but in this modern era of You Tube, the line between established and new media is blurring. Why should an organization like Citizens United (or Michael Moore) seeking to produce a political documentary enjoy less of a First Amendment right than FOX News or MSNBC producing a similarly scathing documentary about Barack Obama or Sarah Palin, respectively? Simply because the state recognizes a legal aspect of a corporation does not mean its members are simply an artificial being notentitled to First Amendment rights.

The First Amendment protects the “freedom of speech,” not just the speech of U.S. Citizens. Foreign citizens, media organizations, minors, non-profits and other people and organization who aren’t citizens are allowed First Amendment rights (not necessarily donating to candidates, which is covered under a different legal rationale).

Ultimately, it is Frank Askin who is defending the indefensible — the right of the government to censor and restrict political speech.

I hope Lionel addresses this distinction further, but what’s at issue in this case is not direct contributions to candidates but independent expenditures that advocate for or against a federal candidate. This isn’t about whether Apple can contribute $1 million to Nancy Pelosi’s re-election but whether Apple can run a $1 million ad campaign saying Nancy Pelosi has been good or bad for Silicon Valley and should (or should not) be re-elected.

Brad Smith, the chairman of the Center for Competitive Politics, and a former FEC Chairman, spoke on this issue today at a panel discussion about this case at the Cato Institute. This distinction was addressed at length.

Furthermore, it’s important to recognize the actual purpose behind the 102-year-old statute cited here: the Tillman Act of 2007.

Brad Smith addressed this related issue on Citizens United v. FEC in a recent Washington Examiner op-ed:

“Reformers,” also bemoan the demolition of a “century-old statute.” In fact, the Tillman Act of 1907, held up by campaign finance reformers as the sacred law banning corporate contributions, is — as one would expect of a 100-year-old law — outdated and out of step with modern politics and technology.

It was passed at a time when corporations were new and uncommon. Today, nearly every corner barber shop and non-profit organization is incorporated.

The Tillman Act’ssponsor was Sen. “Pitchfork” Benjamin Tillman (D-SC), a notorious racist and proponent of Jim Crow laws. He pushed the corporate contribution ban as a way to kneecap corporations opposed to his agenda because they did not want the added expense of providing separate accommodations for different races or restrictions on hiring black workers.

Campaign finance regulations are often about politicians or interests limiting dissent, silencing critics, and protecting their power — not promoting reform or curbing corruption.

Hi, I’m Lionel Artom-Ginzburg. I’m a lawyer in Pennsylvania whose practice includes a fair bit of election and campaign finance law.

The history of corporate restrictions on campaign contributions is extensive– 1907 for Federal elections, and older for some state elections. The rationale is pretty obvious: unlike individual or PAC contributions, corporate contributions are much more difficult to track. Individuals and PACs have all their donors listed, these days, online. If, for example, Apple Computer were allowed to make donations directly to candidates, who’s to say who is making that contribution? The Board? The Shareholders? Steve Jobs himself? Some person in middle management with access to one of Apple’s checkbooks? What if I’m a shareholder and don’t agree with the contribution? What’s my recourse? To sell the stock? To file a derivative action for waste? To show up at the next annual meeting and try to get a minute and a half of management’s time to let them know how unhappy I am? The notion of a corporate right to free speech in elections is much more recent– 1978.

Hiding the origin of money is, in other circumstances, a very serious crime in our society (ask Tom DeLay). Yet there’s no way you could permit corporate expenditures on elections without also permitting the anonymous sourcing of money in those elections. Is there a compelling enough interest here to overturn a 102 year old statute?

Let’s start this debate by examining the many recent media reports discussing Citizens United v. FEC.

First, I’ll disclose the Center for Competitive Politics’ interest in this case.  We filed a friend-of-the-court brief when the Supreme Court initially considered the case. We also filed a friend-of-the-court brief for the rehearing of the case, which will occur tomorrow. Our chairman, former FEC Chairman Brad Smith, also filed an independent friend-of-the-court brief along with other former FEC commissioners.

Brad also recently published this New York Post op-ed and blog post on the case.

Our basic position on the case can be summarized from the N.Y. Post op-ed:

If political speech can be banned merely because it is produced or distributed by a corporation or with some corporate funding, then (as the government now argues) books, movies, newspapers, TV and radio could be prohibited from any political speech or programming. Surely this is anathema to the First Amendment.

As currently interpreted by the Supreme Court, the First Amendment provides greater protection for flag burning, nude dancing, simulated child pornography and tobacco ads than for core political speech.

The Citizens United case provides an opportunity for the court to return to first principles and declare that the words of the First Amendment, “Congress shall make no law . . .” apply to all Americans, not just those whose speech is favored by politicians.

Below is an exhaustive list of recent media articles on the case. I’ll be pulling out bits of certain articles later on today to discuss the case.

Wall Street Journal, op-ed: The Chance for a Free Speech Do-Over; Will the Supreme Court finally overturn McCain-Feingold and enforce the First Amendment?

Washington Post, editorial: Exercise Caution; Supreme Court should respect precedent in deciding Wednesday’s campaign-finance case

Washington Post, op-ed (Robert Kaiser): Will Deep Pockets Always Win? It’s In Roberts’s Court.

Washington Post, op-ed (E.J. Dionne): A Test Case for Roberts

New York Times, editorial: A Threat to Fair Elections

Washington Times: Justices take on campaign-law challenge

Politico: SCOTUS campaign case could boost GOP

Boston Globe, op-ed: Corporate free speech? Since when?

AP: Hillary movie puts campaign finance limits at risk

CNN: Analysis: Lines drawn as campaign finance case nears

CBS, Andrew Cohen’s Court Watch: Sonia’s Featured Role in ‘Hillary: The Movie’

The Hill: Supreme Court to hear campaign finance case

SCOTUS Blog: Argument preview: Corporations in politics

Legal Times/First Amendment Center: ‘Hillary movie’ case: courtroom drama

ABA Journal: Hillary: The Law Changer; Unusual pre-term rehearing may reshape campaign finance laws

Houston Chronicle, op-ed: Court should keep ban on campaign spending

American Constitution Society: Citizens United v. FEC Panel: Video Now Available