High Court blasts hole through McCain-Feingold campaign law

In a clear, straight-forward and constitutionally-based opinion , the US Supreme Court yesterday struck down a major portion of the 2002 “Bipartisan Campaign Reform Act” (more commonly referred to by the names of its two primary sponsors in the Senate, “McCain-Feingold”).  The 5-4 majority opinion, authored by Justice Anthony Kennedy, voided the law’s ban on corporations paying for “electioneering communications,” such as movies, newspaper ads, and the like, that support or oppose candidates. 

The plaintiff in this historic case was the Washington, DC-based, grass-roots advocacy organization, Citizens United, which in early 2008 was prepared to spend its corporate money to advertise and distribute a movie critical of then-primary presidential candidate Hillary Clinton (Hillary:  The Movie).  Because it feared the government would bring criminal charges against it if it actually spent money for this purpose (which the government is empowered to do under McCain-Feingold), Citizens United sought to have the federal district court declare the law to be an unconstitutional restraint on the exercise of its First Amendment rights.

Yesterday’s High Court opinion began where such a constitutional analysis ought to begin, by declaring the obvious – that political speech and money spent in furtherance of promoting and disseminating political speech is in fact protected by the First Amendment.  The Court then correctly noted that historically and legally, corporations do enjoy First Amendment rights to free speech; and that the federal campaign law criminalizing the corporate act of simply using its lawful monies to disseminate lawful political speech, is in fact an unlawful restraint of protected speech.

The Court also struck down the notion embedded in previous decisions empowering the government to restict corporate speech, that simply because a corporation funds political speech, it is necessarily “corrupt” or provides the “appearance of corruption” of the political process.

There are other, odious provisions contained in the McCain-Feingold law that need to be striken down, but which were not presented to the Supreme Court in the Citizens United case.  Hopefully, the Court will so invalidate them in the near future.  But for now, we should all — regardless of where we stand on the political spectrum — rejoice in the fact that at least part of the muzzle placed on Americans by McCain-Feingold (which former President George W. Bush signed into law), has been removed.

163 comments Add your comment

atlwolf

January 22nd, 2010
2:52 pm

If this ruling is left in place, America will eventually become a corporate oligarchy. Anyone who does not see this is deluding themselves.

Barr, you are an idiot.

Jeff Smith

January 22nd, 2010
3:11 pm

atlwolf

I’m curious, how do you make your living?

william

January 22nd, 2010
3:22 pm

Massachusetts proved to me where the real power is. Corporations can not vote. I know it will be very difficult to become a socialist societ with corporations so I have not problem with this ruling. Life free or die!

Jeffersonian republican

January 22nd, 2010
3:22 pm

It has been a great week for Liberty! Two good things that W. did – Alito & Roberts. Glad to see Kennedy believes in the Constitution.

Sunshine and Thunder

January 22nd, 2010
3:46 pm

OK Bill,

Let’s say you have a lot of money and you want to buy some stock in a newly formed company. A few years later, after it has appreciated, you want to sell that stock. How would you do it? Maybe through a vast, highly liquid secondary market? Hmmm? How do you think comanies are able to intially sell stock? Because investors know that if they buy it, they can also sell it.

Sunshine and Thunder

January 22nd, 2010
3:55 pm

Would any of you address the question of why it is OK for some corporations to have free speech but not all? For example, Cox Communications owns media outlets and has editorial boards on those outlets that take political positions. I know you’re going to say that the boards are independent but the law doesn’t know that.

Byron Mathison Kerr

January 22nd, 2010
4:08 pm

Now, more than ever, we are all marginalized by the duopoly of the two-party system and the concentration of the influence of money, and neither the Democrats nor Republicans have incentives to change anything about it.

Independent and third-party candidates are rarely in a position to compete since they are usually seen as “spoilers.” Why vote for them and take the risk that the Democrat or Republican you most object to will win over the one you least object to?

But there is an idea catching on at the State and local levels to prevent the spoiler effect: Instant Runoff Voting. It allows voters to cast their ballots by indicating their preference order for the candidates.

If the person you really want does not get enough votes to win, then your vote goes to your second choice, and so on. The process repeats automatically until one of the candidates wins a majority.

It just plain makes good old-fashioned common sense. Imagine the power of your vote! Imagine how much public money would be saved on runoff elections!

Who would possibly not want to have more voices and more choices? The Democratic and Republican parties, that’s who!

Glenn

January 22nd, 2010
4:20 pm

Wouldn’t buying influence in a democracy impact liberty & freedom in a negative way ? I’m very surprised that you would write this Mr Barr .

OneFreeMan

January 22nd, 2010
4:35 pm

Foreign governments, foreign citizens and any other foreigner that have ownership in an American company can influence USA elections without limit. I am not surprised at those the feed and clothes their families by being a tool for corporations.

Corporations cannot vote or run for office, but they can donate as much as they choose to a condidates election.

Bob, you never cease to amaze me. In one column, you appear to be for the American people and the constitution then you support corporations being able to INFLUENCE elections when corporations can be own and controlled by foreigners.

Oh well…

Ridgerunner

January 22nd, 2010
4:48 pm

Swede Atlanta :

Thank you for your 1:59. I can be very satirical and even cutting sometimes (verbally the same as a politcal cartoonist) but I avoid being personal. Tracker’s post was not worth my response.

Bill:

Agree to disagree.

Sunshine and Thunder

January 22nd, 2010
4:59 pm

“Corporations cannot vote or run for office, but they can donate as much as they choose to a condidates election.”

They sure can pay taxes, too.

Jeff Pruett

January 22nd, 2010
5:03 pm

The issue that troubles me is the courts ruling that a corporation was a “person”. It’s not. This gives CEO’s the right to spend the stockholders money on political issues without their knowledge.
If Bill Gates or Warren Buffet want to spend their billions on a cause it’s their right.
It’s not the right of Coca Cola’s CEO to spend the money of a company I have an ownership stake in on politcal positions I might not agree with.
And how about a American owned subsidiary of a Chinese company pouring money in amercian polical campaigns.
Bad idea all around.

High School Dropout

January 22nd, 2010
5:06 pm

So do assembly line robots now have free speech rights?

OneFreeMan

January 22nd, 2010
5:08 pm

Sunshine and Thunder

January 22nd, 2010
4:59 pm
“Corporations cannot vote or run for office, but they can donate as much as they choose to a condidates election.”

They sure can pay taxes, too.”

So can foreign visitors. Paying taxes in the USA doesn’t make you a citizen.

Roy

January 22nd, 2010
5:18 pm

I have heard no logical reason from anybody as to why the 1st Amendment can`t apply to corporations…The make up of corporations is people ie: individuals…..Actually, many people here who disagree with the Supreme Court decision are missing a vital point…The McCain-Feingold Act really says that voters are too stupid to vote for the candidate they think is the best to represent them, based on the voters own, independent thinking….It says that a “corporation” can run an advertisement that will somehow hypnotize the typical dull-witted, blank-faced voter into voting for whomever the “corporation” says to….So I guess that means that people who are complaining about the Court`s decision are those that can not think for themselves, and “need” a law to protect them…If that`s the way you, then I do feel sorry for you, but do not attempt to lower other people to your level of inadequacy……

Sunshine and Thunder

January 22nd, 2010
5:39 pm

One Free Man.

Oh, I see. Taxation without representation is good for some.

So what is your answer to the question of why some corps can practice free speech while others cannot, i.e. media corporations, 503(c) corps vs say, General Motors?

How is it that the people have a right to assemble but that assemblage has no right to sell shares and make a profit; or, if they do, they lose their right to free speech?

Rational Person

January 22nd, 2010
5:50 pm

So Bob wants us to rejoice because some high-roller in Russia or China can pour millions into influencing an American election? So that Paris Hilton’s voice will be millions of times louder than a college professor’s?

This way to the plutocracy.

Swede Atlanta

January 22nd, 2010
6:10 pm

Ref: Roy @ 5:18

Roy, two points

1. The Bill of Rights applies to individual human beings. The Preamble reads “We the People” and the Natural Law concepts that informed the Founding Fathers spoke of the rights of man and in that context it was clearly understood to be living human beings.

A corporation is not a person. It is a legal fiction. It is not made up of people. People may invest in a corporation but the thing itself is not a person or made up of people. It is a legal construct that gives legal recognition to a particular form of business organization.
Corporations don’t exit in the natural world.

2. The point is that when you give monied interests the ability to overwhelm the political discourse it is unfair and undemocratic. If a corporation can use their vast financial wealth to contribute to individual campaigns, run positive or negative ads every 15 minutes, etc. they can simply drown out the other side of the discourse. I can’t afford to contribute $100,000 to a campaign but Georgia Power can.

So John Q. Public may literally only hear one side of an issue or the negatives of a candidate. Surely you can’t believe that whoever has the most money to buy the most ads, etc. should win.

The issue isn’t that the public can’t make an informed decision. It is that the political discourse can be essentially halted if one side has enough money.

For that reason I would like to see a Constitutional Amendment that imposed term limits and limited the amount of time and money that can be spent on a campaign.

It would introduce a level of fairness into our electoral process.

Sunshine and Thunder

January 22nd, 2010
6:26 pm

Swede Atlanta,

No, corporations aren’t people but they consist of people. It may be as few as one or as many as thousands. The first amendment specifically enumerates the right of the people to peaceably assemble. I just don’t see the clause that states such an assemblage has no right to speak out. Corporations are an assemblage of people.

In McCain Feingold the limits placed on campaign advocacy just prior to elections didn’t apply to the media. If you are so worried about monied interests flooding peoples empty brains why aren’t you arguing about that? The NRA had to buy a radio station to make its voice heard.

Swede Atlanta

January 22nd, 2010
6:29 pm

Ref: S&T

No, corporations do not consist of people. They don’t exist except by operation of corporate law. Corporations employ people, corporations have people as investors but the “thing” isn’t people. It is a business form that gives people that organize and invest in the corporation certain legal rights and obligations. But you can’t show me a corporation. A corporation is a piece of paper.

Hank

January 22nd, 2010
6:42 pm

Corporations are NOT people. That said, they are RUN by people. These same people already have votes and the ability to donate as individual citizens. Allowing extra “votes” under the cloak of corporate contributions is disingenuous at best. I do not agree with the SCOTUS nor Mr. Barr on this one. To me, relegating this to a constitutional issue is just ludicrous. It’s nothing more than legally sanctioned election rigging. Period. The corporations have won a major victory with this one. This way the possibility of a 3rd party coming to power in Washington is less than zero it seems.

jason

January 22nd, 2010
6:57 pm

Newsweek reports that foreign businesses might be the real winners in yesterday’s Supreme Court decision on campaign finance that now “allows corporations and unions to spend limitless amounts of money on presidential and congressional political campaigns. A majority of large businesses are now owned by foreign entities, and this means international corporations could pour tons of money into the United States political scene, potentially swaying the political climate.”

Sunshine and Thunder

January 22nd, 2010
7:21 pm

So what gives unions the right to buy political ads? What give the ACLU? The NRA? Why are you folks so afraid of an entity that demands hard work and hires lots of people and makes money for your 401(k)?

Sunshine and Thunder

January 22nd, 2010
7:23 pm

Individuals have the right to donate but, without forming (assembling) a group with lots of donors they usually don’t have enough money to buy media advertising. So aren’t these groups legal entities who don’t enjoy the rights that people do? None of you has answered that question.

Common Sense

January 22nd, 2010
7:28 pm

You do not need to only interpret the word “corporation” as an IBM, Microsoft, etc. A corporation can also be you and your neighbors, forming a corporation as a legal entity for some purpose. Then raising funds to support that purpose, and using those funds to advertise.

In the SC case that was the situation. GE didn’t make that movie, an interest group (OK special interest group but seriously every club etc is a “special” interest group, it’s not evil) that was very interested in getting the real story on Hilary out to the world was prevented from doing so.

That does seem to be limiting free speech

Alice

January 22nd, 2010
8:49 pm

Hey, where did all these people come from? You go Bob. You are finally beginning to rouse some rabble. I’m so proud of you.

Jeff Smith

January 22nd, 2010
8:51 pm

What do you people think a corporation is? It is an assembly of people with a common purpose and a shared financial stake.

It isn’t a collection of robots, or aliens, for god’s sake. It can even be predominately composed of liberals. This ruling cuts both ways – some companies lean left, some lean right. What is the problem?

If you people are so worried about corporations influencing elections too much – don’t listen to them. Turn the radio, TV, internet off. Act like an adult!

If a “regular” corporation doesn’t have the right to political speech, why, please explain to me, should a newspaper or a political party?

Sunshine and Thunder

January 22nd, 2010
9:08 pm

“If a “regular” corporation doesn’t have the right to political speech, why, please explain to me, should a newspaper or a political party?”

We have a winner. Jeff, I have been ignored on that very question for 5 hours now.

Glenn Beck

January 22nd, 2010
9:58 pm

OBAMA MUST GO. TRUST ME WE NEED CHANGE!!!!!!!!!!!!!!

Captain America

January 22nd, 2010
11:23 pm

If corporations have the same rights as people, then my dog should also be considered a person with full rights. At least he’s a living being, unlike a corporation.

Where in the Constitution does it say that corporations have any rights at all? It doesn’t Bob! This was judicial activism at it’s finest, making up the law to be what the judge wants. Just like they abandon “states rights” whenever they don’t like what a state is doing, conservatives will applaud this wholesale re-writing of the Constitution simply because they think that corporations should control the country. And they claim to decry the “nanny state”. puleeeze.

Thanks to Benito Scallia and the other four fascist/corporatist supreme court judges, the will of our founding fathers is once again being trashed and more of our freedoms with it.

Roy

January 23rd, 2010
1:21 am

Oh come on Swede Atlanta!….Corporations are made up of people ie: INDIVIDUALS….They have every right to speak out against politicians who smear them eg: greedy corporations…..The left-wing always slams corporations as, for example, being responsible for the recent financial meltdown….But if one looks closely, they will find that was the GOVERNMENT that was to blame for this crash….It was the government that forced lending institutions to give mortgages to people with no/bad credit and couldn`t meet the payments….And, I will say it again…Apparently some people here are too stupid to vote for a candidate objectively, and are easily manipulated by an advertisement…Fine, that`s you…..But don`t for a moment think that everyone else is as dull as you are…..And remember, the 1st Amendment starts out, and clearly states, “Congress shall make NO LAW…..”…Now what part of that don`t you understand?…..

Sunshine and Thunder

January 23rd, 2010
1:48 am

I love this. In the second amendment liberals tell us that the “people” are simply the state or the national guard, but in the first amendment the “people” are only natural, living, breathing creatures.

Sorry guys. Can’t have it both ways. I know your mommies used to let you but we won’t.

JOHN ODD OWL

January 23rd, 2010
4:06 am

RigeRunner is a master of the false anology, like most of his kind on the far right. We Dems need to exert enormous amounts of pressure on Clarence “uncle tom” Thomas and force him to resign. Then the President can nominate a real Justice to the Supreme Court. Chief Justice Roberts is a right wing radical, power hungry activist Judge. We the People must reign in his power.

Glenn Beck

January 23rd, 2010
7:48 am

PEOPLE, WATCH THE SHOW AND LEARN ABOUT THE UNDERMINDING OF THIS ADMINISTRATION. MONDAY- FRIDAY 5-6 PM.

Swede Atlanta

January 23rd, 2010
8:11 am

Roya @ 1:20 a.m.

OK Roy, let’s meet for coffee and I want you to bring a corporation for me to meet. I don’t mean employees or shareholders, I mean bring me the corporation. I’ll even buy. A corporation is a form of business organziation recognized in our corporate law with certain rights and responsibilities. The corporation itself doesn’t exist outside of corporate law. The corporation doesn’t live, it doesn’t eat or drink, it doesn’t sleep. It is inanimate. People may be employees of a corporation. People may be investors in a corporation. But the corporation, the “thing itself” is a legal fiction. It doesn’t exist in nature.

Robert Littel

January 23rd, 2010
8:33 am

“I pledge allegiance to the flag of The Corporate States of America,
and not to the republic for which it once stood.
One nation, under corporate control, class divisible, with Liberty and Justice for anyone who can pay for it.”

Swede Atlanta

January 23rd, 2010
8:47 am

Ref S&T @ 1:48

Thank you for some sunshine.

The Second Amendment reads, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

As a preliminary matter the first clause, “a well regulated militia”, defines the purpose for the right, i.e. Because a well regulated militia, etc……”

Recall that at the time of the writing of the Constitution there was no standing U.S. military. The states, however, had a long tradition of militias. But the states didn’t give citizens firearms. They may have provided gunpowder, food, etc. but you showed up with your gun, bedroll and any personal effects you might need.

Congress, fearing any action by the federal government from seizing an individual’s weapons as the British had done, inserted this provision. They wanted to be sure that individuals had the right to own weapons in the context of their use in the militia.

Today, you don’t bring your own gun when you go to the National Guard. The state provides you with one.

But returning to what appears to be confusion about “people”.

The point with respect to corporations is they aren’t people, they are legal fictions. People may be involved in a corporation or work for one but a corporation is a piece of paper. The Preamble to the Constitution states “we the people”, so these rights are given to “people”, live human beings.

In the 2nd Amendment, the right is absolutely individual but the Founding Fathers were very clear to say that the right is given because a well regulated militia is necessary. The right is personal but it is conditioned. I think the Supreme Court missed the conditional part because that condition no longer exists today.

Real Athens

January 23rd, 2010
9:37 am

“Corporations … But, they DO pay taxes. Lots and lots of taxes.”

I never thought I’d quote this boob, but here goes: “Corporations do not pay taxes, they pass them on to consumers in increased prices of goods and services.” Sean Hannity.

Individuals do not have this ability.

Corporations can also be bailed out of fiscal irresponsibility to the tune of millions with tax dollars.

The argument of corporate rights goes all the way back to Adams (for) and Jefferson (against). When the door is opened and corporations are given all the rights afforded in the INDIVIDUAL Bill of Rights, our Constitution and Bill of Rights becomes null and void.

It will be time to “storm the Bastille” with daggers in our teeth.

Pause to reflect: Is it just coincidence that all the justices who voted for this travesty were appointed by Republican administrations?

Alan MacDonald

January 23rd, 2010
10:42 am

Ralph Nader, the ‘democracy advocate’, and Stevens, the enlightened liberal justice, are exactly correct in tying this issue to America’s founding genius, and enlightenment in choosing democracy over Empire.

It’s really a simple choice, we now need to reinforce and expand to all aspect of our lives and society —- as an anti-Empire ’social democracy’.

The choice in all spheres of life & society such as the key ‘5 or 6’; political, business, religion, social, educational, etc. is merely a choice of democracy/freedom or Empire.

The founding of the United States of America in ‘the new world’ followed this generalized enlightenment principle by choosing for our “life & society” to select “democracy & freedom” (instead of Empire) in the spheres of political and religious life — and this choice of democracy & freedom in each sphere also included the protection of our democracy & freedom in the political sphere from our democracy & freedom choice in the sphere of religion (and vise versa).

This founding American choice was a simple and elegant idea of enlightenment for all individuals in a society (large or small) to protect our free choice of democracy & freedom (vs Empire) in all our spheres of life.

So, the only real choice that we now have to re-address, for a second endorsement of America’s founding idea of democracy & freedom, is the simple binary choice of whether we want to live in a society (which is now the whole world) based on democracy & freedom (in all spheres of our lives, and protected from any adverse impacts by other spheres of life) OR whether we want to live in a life and society of Empire ruling every sphere of life and society — because Empire (like cancer) in any one sphere (particularly the economic) will ineluctably metastasize into and destroy all society and ultimately all our lives — and remember, you aren’t going to be the last Emperor standing!

As Clint Eastwood said, “Well, in all this excitement I don’t remember if it was ‘5 or 6’. So, punk, do you want to take that chance?”

Alan MacDonald
Sanford, Maine

Rational Person

January 23rd, 2010
11:04 am

Both Jefferson and Eisenhower warned us about the corporations’ becoming too powerful.

Mussolini defined fascism as the merger of the corporate and the political.

Is anybody listening?

AF

January 23rd, 2010
12:58 pm

Mr. Barr,

But is this good for democracy? I don’t think so.

Our legislaors are already in the pocket of “special interests” who fund their campaigns. It is not individual voters who get legislators elected, it is those who give big bucks to politicians to get their message out. Those who don’t have the money can’t get their message out. So, victory goes to the one with the money.

Giving more power to those who already have power is self-destructive to democracy.

Phill

January 23rd, 2010
2:18 pm

As Will Rogers said “Welcome to the best government money can buy”. Now that money will undoubtedly come from Multinational Corporations (those same one’s who took all the jobs offshore) who may or may not have the best interests of Americans at heart. Guess this country wants Saudia Arabia, Yemen, and yes even Iraq & Afghanistan deciding our political future. The sound of money bags dropped on DC will effectively silence the voice of Americans. Republicans and Democrats need to see this for what it is.

Sunshine and Thunder

January 23rd, 2010
3:51 pm

Ignored again. For the last time,, how can any organization such as MoveOn.org or the NRA engage in free speech if they are not natural persons? Anyone, anyone, Bueller?

You’re all so worried about IBM buying adds during a campaign but have no problem whatsoever with Cox Communications publishing editorials in favor of a specific candidate. No problem whatsoever with the ACLU or the NRA buying advertising. What gives, guys. I’m asking a straightforward question.

Glenn Beck

January 23rd, 2010
7:36 pm

IS ANYONE PAYING ATTENTION????

LibertyAtStake

January 23rd, 2010
8:12 pm

@Chris Broe: Sorry, bro, First Amendment = NO LIMITS / NO RESTRICTIONS / FULL DISCLOSURE. You should ask Mr. Soros if he has any plans to lay YOU off.
http://libertyatstake.blogspot.com/

bob

January 24th, 2010
8:36 am

Dems say corporations pay taxes, not true though, why not let them have a voice ?

Glenn Beck

January 24th, 2010
8:55 am

WAKE UP AMERICA!!!!!!!!!!!
DOES ANYONE OUT THERE HEAR WHAT I’M SAYING???????????????

Hard Right Hook

January 24th, 2010
9:01 am

Byron Mathison Kerr

January 22nd, 2010
1:29 pm
To Dave R., January 22nd, 2010, 12:02 pm:

“The economic model of capitalism is outright taking over the governmental model of democracy — and the overall citizenry of this great country of ours seems unaware of its happening.”

1. We do not live in a Democracy. We live in a Representative Republic.

2. In capitalism, the corporation must provide a service or product which the market will purchase, which is it’s source of revenue. The illustrious federal government confiscates it’s revenue from a select group of taxpayers, with the taxpayer having no recourse.

3. The overall citizenry of the great country is realizing that 50% of wage earners contribute NOTHING to the federal treasury. This allows a percentage of our society to suckle at the government teat (parasites, whiners, where’s mine, it’s not fair, etc).

4. Capitalism cannot take over Government so long as Government has the ability to confiscate more and more money from those that earn it. So long as Government confiscates more and more money, people, the wage earners, have less and less to spend on what corporations produce.

Government will eventually displace capitalism so long as “Good men stand by and do nothing.”

hat turnt sideways

January 24th, 2010
9:07 am

all i want is to sell my rocks.

Hank Williams Jr.

January 24th, 2010
9:29 am

Thanks to Glenn Beck for having me and Sarah Palin on the show last week.
Enjoyed singing ” Dixie On My Mind” to the American people.
Next time I plan to sing “If Heaven Ain’t Alot Like Dixie” and “A Country Boy Can Survive”.