From the Center for Competitive Politics, a news release, “Poll on Citizens United shows support for free political speech“:

A poll released today by the Center for Competitive Politics shows that Americans generally support First Amendment rights in politics for corporations, unions and nonprofit advocacy groups.

A majority of respondents supported the Supreme Court’s decision in Citizens United v. Federal Election Commission when asked about the facts of the case and its result: “that incorporated entities—businesses, unions and nonprofit advocacy groups—have a First Amendment right to spend money from their general treasuries to fund independent advertisements urging people to vote for or against candidates for public office.”

“Citizens hold complex views on money in politics. They are wary of ‘special interests’ as well as ‘corporate’ spending, and some are surprisingly willing to censor the press,” said CCP Chairman Bradley A. Smith. “At the same time, Americans understand that campaign finance restrictions have failed to reduce the influence of ‘special interests’ and don’t support government efforts to silence the political views of groups, including unions and corporations.”

“Americans also strongly oppose regulations that would restrict the distribution of political books, movies and other publications,” Smith said.

The Washington Post recently touted the results of several poll questions it posed to claim the public overwhelmingly opposed the Supreme Court’s decision in Citizens United and supported limits on corporate contributions. Here were the two questions:

35. Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

36. Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns? Do you feel that way strongly or somewhat?

In knocking the Post for bias and unrevealed self-interest in its coverage of the Washington Post/ABC News poll, we commented, “First, we doubt many in the public are aware of the Citizens United ruling, so a polling story that emphasizes the strong bipartisan sentiment’ for limits oversells the case.” And what do you know? The poll conducted for the Center for Competitive Politics by the Iowa firm, Victory Enterprises, starts out with a question that reveals 60 percent of those questioned were unfamiliar with the Supreme Court’s ruling.

WashingtonPost.com gave big play Wednesday to a new poll that included questions about the recent U.S. Supreme Court decision in Citizens United v. FEC, which overturned the statutory ban on independent political advocacy by corporations and unions. The limits imposed by the Bipartisan Campaign Finance Reform Act unconstitutionally infringed upon First Amendment rights, the court ruled.

The online story was headlined, “Large majority opposes Supreme Court’s decision on campaign financing“:

Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.

Eight in 10 poll respondents say they oppose the high court’s Jan. 21 decision to allow unfettered corporate political spending, with 65 percent “strongly” opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.

Unfettered corporate spending? No. Direct corporate campaign contributions to political candidates remain prohibited. The two questions posed in the poll also simplify the ruling to the point of inaccuracy:

35. Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

36. Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns? Do you feel that way strongly or somewhat?

First, we doubt many in the public are aware of the Citizens United ruling, so a polling story that emphasizes the “strong bipartisan sentiment” for limits oversells the case. As Jeff Patch of the Center for Competitive Politics wrote in a news release, “Campaign finance is an incredibly complex legal framework, and most Americans have an incentive to remain rationally ignorant about the laws and regulations at issue.” (It’s an excellent release that rebuts the ABC/Post’s polling, also noting the vociferous campaign some political interests have mounted against the decision.)

We’d argue, as well, that polling questions should include reference to the U.S. Constitution or the First Amendment, since speech is at the heart of the issue. You could just as well ask: “Do you support or oppose the recent ruling by the Supreme Court that says the U.S. Constitution protects the right of corporations and labor unions to spend money in support of candidates before an election?” The public’s response would be different. Add in the phrase “free speech rights” and the response would change again.

As is typical of the coverage of this issue, the Post account also omits the self-interest of the newspaper industry in supporting limits on corporations’ speech. The McCain-Feingold campaign finance law specifically exempted the media from its restrictions on political advocacy.  Newspapers can spend money to pay the writers and other staff, supply the equipment, heat the building and distribute the product that includes an editorial before an election that says, “This is a bad idea and you should vote against Candidate X.” Any non-media corporation that did exactly the same thing would have violated the law. McCain-Feingold magnified the power of newspapers and their editorials.

Hans von Spakovsky of the Heritage Foundation has just released a new Legal Memorandum that discusses many of these issues from a legal and Constitutional perspective, “Citizens United and the Restoration of the First Amendment.” The article examines the legislative various proposals in the wake of the Supreme Court’s ruling to invent some new limits against advocacy, and concludes they still run afoul of the First Amendment. Unlike the ABC/Post poll, his arguments are founded in the U.S. Constitution.

Since the U.S. Supreme Court’s Jan. 21 ruling in Citizens United v. FEC, members of Congress have introduced the following bills and one constitutional amendment. Some are targeted at campaign contributions by foreign corporations, which were not affected by the Supreme Court’s decision, contrary to President Obama’s assertion in the State of the Union. See Hans von Spakovsky, Heritage Foundation, “The Truth About President Obama and Citizens United.”

• H.J.RES.68 : Proposing an amendment to the Constitution of the United States prohibiting corporations and labor organizations from using operating funds for advertisements in connection with any campaign for election for Federal office.
  Sponsor: Rep Boswell, Leonard L. [IA-3] (introduced 1/21/2010)
• H.R.4510 : To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations in which foreign principals have an ownership interest.
  Sponsor: Rep Grayson, Alan [FL-8] (introduced 1/26/2010)  
• H.R.4511 : To amend the Federal Election Campaign Act of 1971 to prohibit corporations which employ or retain registered lobbyists from making expenditures or disbursements for electioneering communications under such Act, and for other purposes.
  Sponsor: Rep Grayson, Alan [FL-8] (introduced 1/26/2010)
• H.R.4517: To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations which are owned or controlled by foreign principals, to increase the civil penalties applicable to foreign nationals who violate the ban, and for other purposes.
  Sponsor: Rep Hall, John J. [NY-19] (introduced 1/26/2010)    
• H.R.4522 : To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations which are owned or controlled by foreign principals.
  Sponsor: Rep Pascrell, Bill, Jr. [NJ-8] (introduced 1/26/2010)      
• H.R.4523 : To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations whose shareholders include any foreign principals.
  Sponsor: Rep Perriello, Thomas S.P. [VA-5] (introduced 1/26/2010)
• H.R.4527 : To amend the Federal Election Campaign Act of 1971 to require certain campaign-related communications paid for by a corporation or labor organization to include a statement identifying the chief executive officer of the corporation or the president of the labor organization, and for other purposes.
  Sponsor: Rep Driehaus, Steve [OH-1] (introduced 1/27/2010)     
• H.R.4540 : To amend the Federal Election Campaign Act of 1971 to extend the ban on election activity by foreign nationals to election activity by domestic corporations which are subsidiaries of foreign principals.
  Sponsor: Rep DeLauro, Rosa L. [CT-3] (introduced 1/27/2010)  
• S.2954 : A bill to amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporation which are owned or controlled by foreign principals.
  Sponsor: Sen Menendez, Robert [NJ] (introduced 1/26/2010) 
• S.2959 : A bill to amend the Federal Election Campaign Act of 1971 to protect Federal, State, and local elections from the influence of foreign nationals.
  Sponsor: Sen Franken, Al [MN] (introduced 1/27/2010)

A common take by critics of the Supreme Court’s ruling in Citizens United v. FEC was that the ruling will allow corporations to dominate the electoral process by spending money. Many in the media also glossed over the fact that the ruling also applies to labor unions, allowing members of organized labor to express their political opinions freely through the campaign process.

So hemikudos to the AFL-CIO for having filed an amicus brief in support of Citizens United in challenging the limits on First Amendment rights imposed by the Bipartisan Campaign Reform Act, aka McCain-Feingold. We halve our praise because of the union’s churlish statement issued after the 5-4 ruling, in which the AFL-CIO claimed unions deserve special rights: “Unions, unlike businesses, are democratically-controlled, nonprofit membership organizations representing working men and women across the country, and their independent speech should accordingly be given greater protection.”

Make a profit? No First Amendment for rights for you!

Still, the union stuck its neck out by siding with David Bossie, the conservative activist, and his litigation against the FEC. The AFL-CIO’s lawyer in the case was Lawrence Gold of Lister, Trichtman and Ross, who even joined such notable conservative legal minds such as Bradley Smith and Hans von Spakosvky on a media briefing call after the Supreme Court decision.

Now the AFL-CIO is taking grief from the left for having joined other advocates of free speech. It’s probably no consolation to the labor bosses, but we say good for you.

Also…

George Mason law professor Ilya Somin explains more about the rights of corporations and individuals in several posts at the legal blog, Volokh Conspiracy:

• Why Restrictions on Corporate Speech Reduce Political Equality
• People Organized as Corporations are People Too
• Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are ‘State-Created Entities’?

On the Mark Levin radio program last evening and then in today’s Washington Post, David Bossie of Citizens United drew attention to the Supreme Court’s March, 2009, oral arguments in Citizens United v. FEC. In response to questioning from the justices, Deputy Solicitor General Malcolm L. Stewart said that federal law, McCain-Feingold, allowed the government to limit or even ban books as well as electronic media. At that point, Bossie said he thought he had won his free speech case.

The Wall Street Journal’s lead editorial today, “A Free Speech Landmark,” also cited the exchange as a critical moment in the court’s consideratin. Below is the exchange, starting on page 21 of the transcript.

But first, another important point made clearly by Ilya Somin at the legal blog, Volokh.com: “People Organized as Corporations are People Too.”

Now the transcript:

JUSTICE ALITO: Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth? What’s your answer to Mr. Olson’s point that there isn’t any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?
MR. STEWART: I think the — the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life. Those could have been applied to additional media as well. And it’s worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering which have been limited by this Court’s decisions to express advocacy -
JUSTICE ALITO: That’s pretty incredible. You think that if — if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?