Citizens United Archives - Shopfloor

Demonizing vs. Democracy: Chamber Wins the Argument

By | First Amendment and Lobbying, General | No Comments

The White House and DNC attacks against the U.S. Chamber of Commerce for daring to criticize the Administration over policy matters have failed miserably. With no evidence at all — just the bugaboo of “foreign money” — they accused the Chamber of wrongdoing, implying criminal violations and then demanding the Chamber prove itself innocent.

Failing to restrict political speech through passage of the unconstitutional DISCLOSE Act, the partisans turned from legislation to intimidation. That decision harmed public discourse and showed the Obama Administration willing to use the Office of the Presidency for personalized, demagogic attacks.

The Chamber has ably defended itself, and all but the most partisan of media outlets have found the political charges to be overheated, at best. The New York Times cut the White House’s ground of under it in the Oct. 8 report, “Topic of Foreign Money in U.S. Races Hits Hustings“:

The issue of the chamber’s funding first gained notice this week when ThinkProgress, a blog affiliated with the Center for American Progress, an influential liberal advocacy group, posted a lengthy piece with the headline “Exclusive: Foreign-Funded ‘U.S.’ Chamber of Commerce Running Partisan Attack Ads.”

The piece detailed the chamber’s overseas memberships, but it provided no evidence that the money generated overseas had been used in United States campaigns. Still, liberal groups like MoveOn.org pounced on the allegations, resulting in protests at the chamber’s offices, a demand for a federal investigation by Senator Al Franken, Democrat of Minnesota, and ultimately the remarks by Mr. Obama himself.

White House officials acknowledged Friday that they had no specific evidence to indicate that the chamber had used money from foreign entities to finance political attack ads.

Bob Schieffer, host of CBS’s “Face the Nation,” in a response to White House official David Axelrod’s accusations: “I guess I would put it this way. If– if– if the only charge, three weeks into the election that the Democrats can make is that there’s somehow this may or may not be foreign money coming into the campaign, is that the best you can do?” Read More

Senate Wants to Move Quickly on Imposing New Speech Limits

By | First Amendment and Lobbying, Regulations | No Comments

U.S. Sen. Charles Schumer (D-NY) introduced his legislation to address America’s campaign finance laws recently affected by the Supreme Court’s Citizen United ruling. Congressman Chris Van Hollen (D-MD) will sponsor a companion bill in the House.

Shopfloor has already highlighted some of the problems with what is being called the DISCLOSE (Democracy is Strengthened by Casting Light on Spending in Elections) Act.

Acronym aside, is democracy really strengthened by imposing limits on speech during elections?

Even with a busy Senate calendar that includes financial services reform and potentially climate change legislation, The Hill reports that Senate Majority Leader Harry Reid (D-NV) plans to move the bill near the front of the Senate’s agenda.

Schumer said, “Leader Reid has pledged this bill will be on the floor before July 4.”

Proponents of the legislation are seeking swift passage in order for it to have maximum impact on this fall’s Congressional elections.

After Citizens United v. FEC, More Polling

By | Briefly Legal, First Amendment and Lobbying, General | No Comments

Matt Sundquist of the legal affairs blog, Scotusblog, examines two public opinion surveys taken after the U.S. Supreme Court’s decision in Citizens United v. FEC, which held 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.

We had already critiqued one, a Washington Post/ABC survey, for the tendentious phrasing of its questions. The other survey Sunquist writes about was conducted for the self-styled campaign finance reform advocates, Common Cause, Change Congress, and the Public Campaign Action Fund, which seek to limit campaign spending and abridge First Amendment Rights.

[Neither] of the surveys mentions important distinctions between federal laws, which previously banned corporate contributions, and state laws, which in many cases have permitted it for years.  And in all three of the questions, the broad language seems to affirmatively mislead respondents.  Although respondents would assume that the survey used accurate, clear language and provided all of the information needed to form an opinion, the survey did neither.

Although the language of these polls is flawed, it is possible to design an improved poll.  Future Citizens United polls ought to distinguish between state and federal laws and eschew mistaken categorical claims.  Knowing that respondents will apply conversational definitions to words, the polls’ creators should use precise language, clarify what types of corporate and union spending are permitted, and accurately contrast the new scope of campaign laws with previous laws.

As we noted in a Saturday post, a survey conducted by the Center for Competitive Politics — which supported the Citizens United ruling — posed specific questions that elicited more informative responses.

New Poll: First Amendment Does Have Some Support

By | Briefly Legal | No Comments

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. Read More

Self-Interested Polling, Questionable Results

By | Briefly Legal | No Comments

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.

Half a Hurray for the AFL-CIO, First Amendment Advocates

By | Briefly Legal, General, Labor Unions | No Comments

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.


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

Uncertainty and the Message Lorain County Might Hear

By | Economy, Energy | No Comments

President Obama travels to Lorain County, Ohio, today for a “White House to Main Street” event promoting jobs creation in a hard-hit corner of industrial America.

Unless the federal government intends to replace the private sector entirely as a source of capital for manufacturers, the President will talk about stimulating private investment by corporations. Businesses will be — or should be — welcomed as the source of wealth and employment.

Yet the day before the President’s trip, he reacted to the Supreme Court’s decision in Citizens United v. FEC by saying this:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.

Big business, those powerful forces of evil, wants to oppress everyday Americans.

Now invest!

Supreme Court Sides With Free Speech

By | General | One Comment

From FoxNews, “Supreme Court Removes Limits on Corporate, Labor Donations to Campaigns“:

In a stunning reversal of the nation’s federal campaign finance laws, the Supreme Court ruled 5-4 Thursday that as an exercise of free speech, corporations, labor unions and other groups can directly spend on political campaigns.

Siding with filmmakers of “Hillary: The Movie,” who were challenged by the Federal Election Commission on their sources of cash to pay for the film, the court overturned a 20-year-old ruling that banned corporate and labor money. The decision threatens similar limits imposed by 24 states.

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

As an advocacy organization, the National Association of Manufacturers believes the right to advocate is protected by the First Amendment. As Justice Stevens wrote in his majority opinion in Citizens United v. Federal Election Commission:

Premised on mistrust of governmentalpower, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in thepolitical speech context, the Government may impose restrictions oncertain disfavored speakers.

 The full opinion is here.

Critics of free speech rights were the quickest to respond to today’s opinion.

UPDATE (11:15 a.m.): From CQ Politics:

Free speech and anti-regulation groups such as the Center for Competitive Politics applauded the Supreme Court’s decision.

“This is not a radical decision because more than half of the states already have these provisions allowing unions and corporations to spend their general treasury funds on direct advocacy,” said Jeff Patch, the organization’s communications director. “There are not any cases of corruption due to independent expenditures that anyone can point to.”

UPDATE (11:40 a.m.): From Citizens for Responsibility and Ethics in Washington (CREW), a statement from its executive director, Melanie Sloan:

This is a disaster for regulation of campaign spending. It means ads advocating the election or defeat of federal candidates will no longer be put out just by candidates and parties, but will now also come from corporations and unions.

In other words, this is a disaster for regulation of free speech. We give Sloan credit for including unions in the groups at which she’s dismayed; the news coverage concentrates on the corporate side of the equation.

UPDATE (1 p.m.): Here’s the docket for the case. That’s the longest list of amicus briefs we’ve ever seen.