Supreme Court Affirming First Amendment, Overturns Key Aspect Of McCain-Feingold

January 21, 2010 - San Francisco, CA - PipeLineNews.org - In a remarkably powerful way the U.S. Supreme Court has struck a huge and far reaching blow in support of the First Amendment, overturning significant aspects of previous "campaign finance reform" legislation, declaring it unconstitutional.

The 5-4 Decision written by justice Kennedy struck down a key provision in McCain Feingold, the onerous legislation passed during GW Bush's first term, which many on the right considered unconstitutional at the time as well as the 1990 Austin decision.

The specific case deals with a campaign documentary generated by the non-profit Citizens United which was critical of then candidate Hillary Clinton.

Fearful that the campaign piece might be violative of McCain Feingold, Citizens sought declaratory and injunctive relief to avoid potential criminal and civil penalties.

The DC District Court decided against the plaintiff and from there it was appealed to the SCOTUS which today ruled in favor of Citizens, overturning the District Court decision.

In order to deal with the core issue - the ability of corporate entities to exercise free political speech - it was necessary for the decision to go farther than that however, "this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment's meaning and purpose." [source, Citizens vs FEC, pg. 3]

In doing so the court overturned the 1990 ruling, Austin v. Michigan Chamber of Commerce, which held that prohibiting political speech by a corporation was constitutional..."This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker's corporate identity and a post-Austin line permitting them. Neither Austin's anti distortion rationale nor the Government's other justifications support...The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin's anti distortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is "indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation." [source, ibid, pg. 5]

Demonstrating the unconstitutional nature of Austin and hence the operative section of McCain Feingold, the court declares:

"The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations including nonprofit advocacy corporations either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship." [source, ibid, pg. 28]

The court affirmed the right of free political speech as necessary to a functioning democracy, "Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14?15 ("In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential"). [source, ibid, pg. 30]

More importantly for this case, it applies the long decided principle that corporations have similar rights to individuals, largely because they are associations of individuals, "Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints...Under the rationale of these precedents, political speech does not lose First Amendment protection "simply because its source is a corporation." Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, 8 (1986) (plurality opinion)("The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster" (quoting Bellotti, 435 U. S., at 783)). [source, ibid, pg. [source, ibid, pg. 33]

The court reasserts the First Amendment rights of corporate entities, "The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation. See Part II?E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009); see also id., at 26?31 (Mar. 24, 2009). If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books. The Government responds "that the FEC has never applied this statute to a book," and if it did, "there would be quite [a] good as applied challenge." Tr. of Oral Arg. 65 (Sept. 9, 2009). >b>This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.... There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations." [source, ibid, pg. 40-44]

This leads to the kernel of today's ruling, "We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations...Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures." [source, ibid, pg. 57]

Just for the record, the self-proclaimed "wise Latina," voted in the mionority [concurring with Justice Stephens' dissent], against the free expression of political speech inherent in the First Amendment...exactly what you would expect from a radical activist.

One additional point to contemplate is the sheer audacity with which the minority in this case, who have traipsed all over the principle of stare decisis [settled law] - inventing new rights at will, most recently and egregiously in Hamden [awarding the full rights of U.S. citizens to foreign terrorists] out of thin air - now hide behind the same principle which they routinely spit on.

"...The final principle of judicial process that the majority violates is the most transparent: stare decisis. I am not an absolutist when it comes to stare decisis, in the campaign finance area or in any other. No one is. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturningsettled doctrine." [source, ibid, pg. 104]

The 31 GOP Senators who voted against this hack, should take comfort this evening, confident it was they who exhibited wisdom and courage in bucking the call of the herd in this matter.

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