(originally written June 7th, 2010)
In January 2010, the US Supreme Court handed down an historic and controversial decision on the case of Citizens United v FEC; the ruling effectively overturned a century of limits on corporate funding for political tv ads. The case brought by Citizens United against the FEC was self-serving and politically motivated. It is clear from the films they produce that Citizens United is simply interested in exposing the public, through any methods necessary, to conservative propaganda, even if that means compromising our democracy.
The McCain-Feingold Act, or Bipartisan Campaign Reform Act (BCRA), was passed by the United States Congress in March 2002 in response to two major issues in national American election campaigns: the use of so called “soft money”, financial donations given to candidates by political parties; and funding of “electioneering communications” television ads, specifically by corporations. To address these issues, the authors of the BCRA put limits on how much soft money could be donated during elections, and set strict parameters on not only how much corporations, both foreign and domestic, can spend on tv advertisements of a political nature, but how soon before election day those ads could be broadcast.
The Supreme Court’s ruling on Citizens United v FEC was a major blow to the BCRA, but the decision is only the latest in a series of challenges to the controversial legislation. First and most notable was McConnell v FEC, another Supreme Court case; it was brought by then-Senate Majority Whip Mitch McConnell, an early critic of the bill. Ironically, this challenge was struck down by the court, leaving the BCRA intact; that court was made up of most of the same justices that sit on the bench now and ruled in favor of Citizens United in the January 2010 decision by a margin of 5-4. What accounts for the change of heart? Did Citizens United bring a stronger case than Senator McConnell? Perhaps because the second case was spurred by a specific incident – The prohibition, under the BCRA, against airing Hillary: the Movie during the 2008 campaign.
Hilary: the Movie was a film about then-Senator Hilary Clinton that Citizens United claimed was an honest documentary, but critics labeled as an attack ad. In the early days of the election, fall 2007 to be precise, most observers saw Clinton as the front runner for the Democratic nomination. Multitudes in the GOP camp were frightened of her, and had been for years, ever since her husband’s time as president from 1993-2000. She was seen as a ruthless and formidable opponent that no one in the 2008 race wanted to go up against in the general election, for they knew she would surely crush them. They needed a way to take her out of the running before that. Along came Citizens United, an organization that specializes in producing what they call documentary films, with titles like The ACLU: at War with America, Broken Promises: the UN at 60, and Celsius 41.11: the Truth Behind the Lies of Fahrenheit 9/11. In early 2008, Citizens United produced Hillary: the Movie, but was prevented from airing it on television under the McCain-Feingold Act. This spurred Citizens United to take legal action against the Federal Election Commission, culminating in the Supreme Court decision handed down in January 2010.
The Clintons and Citizens United, or more specifically David Bossie, the group's leader, have a storied and acrimonious history dating back to the early days of Bill Clinton’s time in the White House. As Jonathan Darman wrote in an article that appeared in Newsweek on June 18th, 2007,
Some grudges just don't die. In the 1990s, David Bossie worked tirelessly as an investigator for Rep. Dan Burton's government-reform committee. Burton was a top-echelon antagonist to Bill and Hillary Clinton, leading wide-ranging investigations of Whitewater and campaign finance. All the digging didn't amount to much: six years after the Clintons left the White House, Burton is a little-heard-from member of the minority party and Hillary Clinton is the front runner to be the Democrats' nominee for president in 2008.
Bossie didn’t stop digging, however. He marshaled an army of Hillary-phobes such as Newt Gingrich – who, along with with his wife, is heavily involved with Citizens United and its documentaries of questionable journalistic integrity - to construct an image of Clinton as a shrewd, paranoid, scheming politico who would do anything to win an election. Bossie attempted to deliver these opinions to the American public in the form of Hillary: The Movie, which the Obama campaign at the time called “trash”, as reported by the Huffington Post in an article regarding the use of a clip of the now-president criticizing his democratic opponent; the film was however praised by many conservative politicians and pundits, including the afore mentioned Gingrich, as well as Britt Hume and Dick Morris, both contributors to Fox News. Two trailers for the film, which can be found at HillarytheMovie.com, show a series of grainy, unflattering photos of Clinton, juxtaposed with sound bites from conservatives such Ann Coulter, Bob Novak, Gingrich, Hume, and Morris; they make statements like “[Clinton] is steeped in controversy” and “sleaze”, and that she's “deceitful” and “will lie about anything as long as it serves her purpose”. As far as one can glean from these trailers, there is no opposing view offered; no one is interviewed to defend Clinton against these disparaging comments. Despite Bossie's claims that the film is a mere documentary, it is clear that it is meant to be a piece of conservative propaganda. Hillary: the Movie was essentially a ninety minute political attack ad – or “electioneering communication” in the parlance of the BCRA - which is why it was not allowed to play on television during the campaign; it fell under the section of the BCRA that prohibits spending on political ad time by PACs and corporations within thirty days of an election - in this case the democratic primaries.
Citizens United fought the ban. They brought a case against the FEC, or Federal Election Commission, which made its way to the Supreme Court. After much contentious debate, the court handed down its decision, with strong opinions on either side. As Adam Liptak reported in the New York Times on January 21, 2010
The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle ? that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.
Though David Bossie and his organization brought the litigation because of a specific problem they had with the BCRA, once the court had come down on one side or the other and the case had been decided, it had somehow become a broader ruling on the First Amendment of the Constitution, and whether and how it applies to not only nonprofit organizations like Bossie's, but also all kinds of corporations, both foreign and domestic. Justice John Paul Stevens, the leading minority voice on the case, got to the heart of the decision in the opening of his 90-page dissenting opinion:
Neither Citizens United’s nor any other corporation’s speech has been “banned,” 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. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case. The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
As Stevens succinctly deduces, the Court unnecessarily made a decision on free speech and who and what has the right to it when the case was about political spending. Not only is this completely inappropriate, but such a drastic reinterpretation of the First Amendment also goes against almost a century of precedent, a practice that is extremely rare in court decisions, both Supreme and otherwise.
The decision drew exuberant support and equally dismayed criticism. Senator McConnell, an early enemy of the BCRA, said the court had “struck a blow for the First Amendment”, while Democratic Congressman Alan Grayson lambasted the ruling as “the worst Supreme Court decision since the Dred Scott case”, referring to the notorious 1857 case wherein the court decided that African-American slaves and their children could never be citizens. Additionally, an ABC-Washington Post poll said that 80% of respondents opposed the decision. Considering the implications for our democracy in general and the fairness of American election campaigns specifically, it was only a matter of time before someone took action.
In late April 2010, Congress introduced a bill, called the Disclose Act, which is meant to counteract the Supreme Court’s controversial decision on corporate political spending. President Obama himself has endorsed the bill, saying in his weekly radio address on May 1st that the afore mentioned Citizens United decision leaves us “facing no less than a potential corporate take over of our elections”.
One provision in the bill is aimed at greater transparency; it would require all broadcast political ads to make clear who is funding them, to reveal the ‘man behind the curtain’, as it were, which is one reason the legislation is being called the ‘Oz’ bill. Critics, such as Thomas J Donohue, President and CEO of the US Chamber of Commerce, said in a statement posted on the Chamber’s website on April 29th that the bill is simply a ploy by the democratic sponsors of the bill, Senator Charles Schumer and and Representative Chris Van Hollen, to help their part in the up coming mid-term elections:
It's a sad day when legislators like Rep. Van Hollen and Sen. Schumer so blatantly put politics before the people's business. With unemployment near 10% and millions of Americans out of work, Congress should be more concerned about creating jobs than protecting their own. It's no coincidence that Rep. Van Hollen is the chair of the Democratic Congressional Campaign Committee and Sen. Schumer is immediate past chair of the Democratic Senatorial Campaign Committee. Sen. Schumer even admits his legislation is designed to “impact” this fall's elections “as much as possible”.
This is a legitimate point. Both Republicans and Democrats draft legislation quite often that is motivated more by political gain than by a need to help people or improve the country. However, the Supreme Court ruling to which the Disclose Act is meant to respond happened only four months before this legislation was brought to the floor of Congress, so the timing is quite likely a coincidence; it is not unreasonable to assume that the Democrats would have introduced this bill regardless of the the proximity of mid-term elections.
Another provision in the bill would require broadcasters to offer the lowest possible price for time slots to political parties seeking to buy ad time; they already are required to do so for individual candidates. The National Association of Broadcasters is opposed to this, citing that “local television stations are just emerging from the deepest advertising recession in 50 years”, and have threatened litigation should the bill pass. Additionally, Doc Sweitzer, a media consultant, claims the bill is “effectively a government mandate [for tv stations] to lose income”, but other experts say the now unlimited spending by corporations on political ads will make up for the loss. It is possible that the provision requiring the CEOs behind the ads to show their faces on screen could diminish this effect, but so far no authorities or learned critics have gone on record with this argument.
Was Citizens United v. FEC politically motivated? Is David Bossie really concerned only with the minutiae of campaign finance reform law, or is he after something else? Well, look at what his organization does; they produce films that are clearly conservative propaganda, praising Ronald Reagan and giving a squawkbox to House Majority Leader-cum-Fox News pundit Newt Gingrich, while taking negative aim at everything from Barack Obama and Hillary Clinton, to the ACLU, the United Nations, and Michael Moore.
Does Citizens United have all the same free speech rights as an individual citizen? No, or they rightly shouldn’t, despite what the Supreme Court says. David Bossie himself, as an American citizen, has all the rights guaranteed under the US Constitution, but his organization should not; now that it does, along with all corporations, our democratic process is jeopardized. The ruling on Citizens United v FEC even gives these rights to foreign corporations, which have no business influencing our elections. Aside from trampling on the rights and opportunities of actual American citizens, allowing corporations from other countries - which would include BP! - to spend money in our elections is a breach of our sovereignty. The Supreme Court, spurred by David Bossie and Citizens United, have compromised our security and the rights of all true American citizens to accurate information about candidates and an equal say in our sacred democratic process.
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