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- [Sal] This is Sal here with Rick Hasen, who's a Professor of Law at UC Irvine School of Law, specializing in election law. I'm here with Bradley Smith, who's former Chairman of the Federal Election Commission. He's also a Professor of Law at Capital University in Columbus, Ohio, and runs the Center for Competitive Politics. So, we're here to talk about what seems like a very important Supreme Court case, Citizens United versus Federal Election Commission in 2010. Could you give a little bit of background on what got us to this Supreme Court decision? - [Rick] Well, the federal government, specifically Congress, gets to pass laws that regulate the financing of federal elections, and then, for state and local elections, that would be an issue for each state, and so, Congress, going back more than a century, has passed laws limiting the amount of money, kinds of money that can be raised, what has to be disclosed, they passed a whole bunch of laws, and these laws are sometimes challenged as being unconstitutional. The usual challenge is that the law violates part of the First Amendment, which protects freedom of speech and association, and the specific issue in the Citizens United case had to do with the First Amendment rights of corporations to spend money to support or oppose candidates for federal office. - [Bradley] Well, it is an important case, but it is a widely misunderstood case. The case, for example, is not about the question of whether, quote, corporations are people. We sometimes hear that. Not a single justice on the court, in any of the opinions, addresses that issue, because it's a longstanding doctrine of corporate personhood that corporations have certain rights that people have when they join together to associate. The case is not about the question of whether money equals speech. The court has long held, not that money is speech, but that you can't try to limit an activity which would be protected under the Constitution, like speech, by limiting money. For example, you could not say it shall be illegal to spend any money in the United States to publish a book or to pay an author or to operate a bookstore, right? - [Rick] So, if you were, say, General Motors or Google, and you wanted to put an ad online or on TV or in a newspaper that says support President Smith for reelection, that would be illegal if it was paid for with money from the corporation. Corporations could still participate, but they'd have to set up a separate committee, called a political action committee or a PAC, and they could only solicit certain people to put money into that pack, and they couldn't take money that they made from selling cars or software or something like that and use it for political purposes, and in Citizens United, reversing some earlier cases, the Supreme Court said that corporations, like individuals, have a First Amendment right to spend, independently, supporting or opposing candidates for office, and that it would be unconstitutional to limit this because it would be too much of an infringement on the speech rights of corporations. - [Bradley] It's about what rights people have to engage in speech when they have chosen to organize as a corporation, so the court makes the holding that corporations and unions have constitutional protection under the First Amendment when they make independent expenditures to advocate for the election or defeat of candidates, and by independent expenditures, we don't say that they can contribute money directly to candidate campaigns, but they are free to spend their own money to communicate with the public at large, and say we think you should vote for this candidate or against this candidate for these reasons, and that, I think, in a nutshell, is what the case is about at that highest level. - [Sal] So, just to get a little bit more into the case, it's really all around this Bipartisan Campaign Reform Act, the McCain-Feingold Act of 2002. What was all that about, and then how did that lead, eventually, to this Supreme Court decision of Citizens United versus Federal Election Commission? - [Bradley] Well, in some ways, it goes back much further than the Bipartisan Campaign Reform Act. We should note that Congress, in 1907, passed the first federal statute that limited corporate contributions to campaigns, right? But corporations quickly found out, well, we can just do expenditures. We don't contribute to the campaign. We just spend our own money, but within this framework, both corporations and unions could do a lot of things. For example, they could run ads that said things like, you know, Congressman Jones is a no-good, anti worker, worker line person who wants to destroy American industry. Call Congressman Jones and tell him we don't need his agenda in Washington, and that didn't count as a campaign expenditure, because it didn't specifically urge people to vote for or against a candidate. - [Rick] So, President Bush signed a law, President George W. Bush, signed a law called the Bipartisan Campaign Reform Act, and this was in 2002, I believe it was, and it's commonly known as the McCain-Feingold Law, because those are the two big Senate sponsors, and the National Rifle Association, Senator McConnell, a bunch of people sued and argued it was unconstitutional. While the case was going through the courts, the National Rifle Association, which definitely has a political point of view, set up a satellite radio station called NRA News, and they said oh, well, if news organizations can engage in this unlimited kind of electoral activity, we'll just make ourselves a news organization, and many people thought this was going to be a kind of sham way of just running political ads all the time. Well, what happened was that the NRA News actually started having news programs, opinion programs, call-in programs, not just on the election, but on issues that would matter to people who were sympathetic to the NRA, and it actually became a bonafide news organization. - [Bradley] So, the McCain-Feingold Law, or the Bipartisan Campaign Reform Act, as it's officially known, attempted to close this alleged or perceived loophole by saying okay, a corporation or a union can't even mention a candidate in a broadcast ad within 60 days of a general election, or within 30 days of a primary election. So, enter a group called Citizens United. - [Rick] Citizens United is an ideological group that is doing political activities, still around, and they had made a documentary called Hillary: The Movie. This was coming out at the time, not of the past election that we just had, but back in 2008, in that period when Hillary Clinton and Barack Obama were going to be competing for the Democratic nomination to be President, in the 2008 period, and Citizens United is a nonprofit corporation. That is, they're not selling shoes. They're just using the corporate form to be able to engage in associational activity, and there had already been a rule, well before the Supreme Court had established, which said if you're an ideological corporation, and you don't take money from for-profit companies, you can already spend whatever money you have in your treasury on political ads and political activity, but Citizens United deliberately took money from for-profit corporations, and they did it because they were trying to set up a test case. What they wanted to do was to take this documentary they had made, Hillary: The Movie, which said very negative things about Hillary Clinton, and they wanted to pay Comcast Cable a million dollars to make this movie available as a video on demand, which anyone could watch by choosing it from, you know, their cable guide. They'd be able to watch it, and under the federal statute, the Federal Election Commission said this looks like it's going to be on television, broadcast in a period close to the election, and it's going to feature the name Hillary Clinton, who's a candidate for President, and that would make it an election ad. It cannot be paid for by corporate funds. There were lots of ways that the Supreme Court could have gone, aside from overturning earlier cases, but the court was bold here, and on a five to four vote, the liberals on the court against the conservatives, the conservatives won, and the longstanding federal prohibition on corporations and labor unions as well spending money in federal elections fell. - [Sal] So, just as kind of a lay citizen, you know, on the face of it, I understand why there's all of this Congressional legislation. You're afraid of undue influence from corporations, but you know, we were able to talk to a few experts who, I think, took a more sympathetic view to the Supreme Court ruling, and their point was Citizens United was this organization. It definitely had an ideological point of view, and it was making this content that was clearly anti-Hillary Clinton, but there's many organizations, media organizations, you know, I think we could point to news channels, websites, which most people would consider to be news organizations or media organizations, that do definitely lean one way or the other, left or right, and they're arguing that the reason why the Supreme Court had to rule this way is if what Citizens United wasn't allowed, then whether you're talking about an MSNBC or a FOX News, that that would start putting them under scrutiny. - [Rick] Well, the law that limited what corporations can do created an exemption for press organizations that were engaged in journalistic kinds of activities, and indeed, the majority on the courts said we have to treat them the same. - [Bradley] The justices expressed real concern about the nature of the government's argument. They said, you know, you're saying you can limit broadcast ads, but what about internet? Could you limit communications about candidates over the internet? And the government attorneys eventually said yes, we can. We can limit anything that involves a corporation speaking about a candidate for office, whether it's on the internet or whatever, and by the time the oral argument was over, the government had asserted that it would have the right, for example, to limit the publication of a book that included one line of advocacy urging people to vote for a candidate at the very end of a long, you know, 500 page book. They had suggested that they could prohibit a union from publishing a pamphlet that advocated the election of a candidate. You could envision, you know, a candidate, something like why working Americans should support, you know, Hillary Clinton for President, or something like that. They had suggested that books over Kindle could be banned under existing law, and so, the Supreme Court said alright, this is very problematic to us. They scheduled it for a second oral argument, heard the case again, and at the end of the case, said we don't think that this is right, at least a majority did, said you cannot limit the speech of a group of people or a body simply because it is incorporated. - [Rick] But there was an argument of the dissenters that said the press is different. The press serves an educational and informative function, which is different than the function of other corporations, and it's permissible, maybe in part because the Constitution does provide separate protection for the press. There was a big debate about what that means, to carve this out. Now, that does create an inconsistency. We'd be saying we're gonna treat Google one way and FOX News and The New York Times another, but the current law is also inconsistent, so let me give you an example from the other side, which is think is very hard for those who support Citizens United to answer. In a case that came a couple of years after Citizens United, there was a guy who was a Canadian law student, then he became a lawyer in New York. He went to Harvard Law School, worked in New York, and he was here on a work visa, and he wanted to, according to his complaint that he filed, he wanted to go to Kinko's and make flyers, spend 50 cents making flyers, saying re-elect President Obama, and he wanted to hand those flyers out in Central Park. Well, because he was not a citizen, even though he's in the United States and has other kinds of First Amendment rights, even though he's not a citizen, he would violate federal law. He could go to jail for years, face a $10,000 fine, if he hands that piece of paper to one person, because then he'd be engaging in election-related activity as a non-citizen, and this case went up and the Supreme Court had a chance to explain why, as in Citizens United, if the identity of the speaker doesn't matter in the First Amendment, really, it's always about more speech all the time in elections, why is it that this guy, Benjamin Blumen, could be shut up? And the Supreme Court didn't even hear the case. It came up on a special kind of appeal from a three-judge court, which means that, when the court declined to hear the case, it agreed that the lower court was right, that this law is constitutional. So, we now have this new anomaly, which is that we say that non-human entities, these corporations that only exist because the state allows it to create this fake thing, non-human entities have these First Amendment rights, but yet a human being who was living in New York who wanted to spend 50 cents, he couldn't do that, and so, what's the difference, if it's really true that the identity of the speaker doesn't matter, which the Supreme Court said to Citizens United? Well, certainly, the identity of the speaker matters when that speaker is a foreign individual, or a foreign government, or a foreign corporation. - [Sal] So, it seems like the majority opinion, they're not saying that large corporations being able to funnel tens or hundreds of millions of dollars for or against a campaign, independently of the candidate, that that won't necessarily corrupt, but it's more of by trying to regulate it in the way that the McCain-Feingold Act does, it actually has far-reaching consequences, or trying to regulate it in the way that the Federal Election Commission was trying to regulate it with Citizens United, it has far-reaching consequences that touch on just general free speech issues, like what you just talked about, you know, a sentence in a book that happens to be published or sold during the election, or a movie made by a random filmmaker. - [Bradley] I think, for one thing, for example, a lot of people, again, they resent to say that corporations aren't people, but they don't realize corporations have always, again, had some of these rights, acted as corporations, and acted in the political arena in a variety of ways, and I think that what these people should ask themselves is, well, if Exxon were not incorporated, would they go oh, well, Exxon's not incorporated. Well, that's fine, let them spend all the money they want, right? And conversely, I find most of these people, if you say, well, should we be able to censor The New York Times? It's a corporation? They say well, no, no, no, not that, and when you see that, I think it makes people realize the question is not really whether it's a corporation speaking or not. The question is whether or not we think the First Amendment protects the expenditure of money. - [Rick] We actually had to have rules before Citizens United to differentiate, because, actually, this was the law, that Google and General Motors could not spend their funds directly on election speech, but The New York Times and FOX News could, and so we had tests, and the Federal Election Commission had tests, and there are just some disagreements about how to best do it. I would point to the work of Professor Sonja West at the University of Georgia, who has written extensively on this, and she said the test should be people who are regularly engaged in journalism. That doesn't mean it has to be objective and you can't have a point of view. It doesn't mean there's a problem with FOX News or MSNBC, because they might have a point of view, but it means you're doing something other than electioneering. - [Bradley] I do think that, yes, that's what I'm saying, that these are some of the costs of having a vibrant, robust First Amendment, and if you want to give the government the power to regulate, you know, books to movies, you should think about who's the politician you most hate? Is it Hillary Clinton? Is it Donald Trump? Is it somebody else? Do you want them in charge of deciding who gets to speak out in politics and in what way and in what fashion and what manner? And I think you should think about it in those terms, and that sometimes makes people realize maybe it's best to let things go. Now, I would say, however, having said that, that a lot of the arguments about corporate influence are vastly overblown. There's quite a bit of debate, really, about whether or not corporations, in fact, benefit from spending money on politics. Big corporations, you know, the Fortune 500 types, what they really like to do is spend money on lobbying. That's much more direct. They can talk to candidates directly. They can let other people elect folks. There's almost certain to be some folks elected who they will like and they can go work with those people and craft messages and bills, and they can do this more behind the scenes, and that way, they don't have to offend any of their customers who don't like the party that they're supporting, but it's also clear that just spending money doesn't automatically win the elections. You can look at the last presidential election. I mean, Donald Trump spent, all totaled, about a quarter of what the Hillary Clinton forces spent. It certainly helps to have money, but in the end, it's not dispositive. What the money does is it's spent to try to inform voters, and those voters go out and vote at the polls. - [Sal] So we've learned that, in Citizens United, the Supreme Court ruled that political spending by corporations, associations, and labor unions is a form of protected speech under the First Amendment, but whether or how the government can limit free speech in campaign contributions is still a matter of debate. As Rick Hasen notes, one test for the difference between the free speech rights accorded to journalists and those or corporations might be whether they are entities regularly engaged in journalism, but as Bradley Smith points out, allowing the government to impose limits on how people or corporations speak out in politics may lead to unintended consequences. To learn more about Citizens United, visit the National Constitution Center's Interactive Constitution, and Khan Academy's resources on U.S. government and politics.