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.