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)

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?

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.

• Common Cause, “Supreme Court Decision Creates Political Crisis“
• Ralph Nader, a statement, “Today’s decision by the U.S. Supreme Court in Citizens United v. Federal Election Commission shreds the fabric of our already weakened democracy by allowing corporations to more completely dominate our corrupted electoral process.”
• Nick Nyhart, Public Campaign, Supreme Court Sides with Wall Street

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.

Remember this?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now reconcile that with this:

(d) An executive department or agency official may communicate orally with registered lobbyists concerning general Recovery Act policy issues; provided, however, that such oral communications shall not extend to or touch upon particular projects, applications, or applicants for funding, and further that the official must contemporaneously or immediately thereafter document in writing: (i) the date and time of the contact on policy issues; (ii) the names of the registered lobbyists and the official(s) between whom the contact took place; and (iii) a short description of the substance of the communication. This writing must be posted publicly by the executive department or agency on its recovery website within 3 business days of the communication.

(e) Upon the scheduling of, and again at the outset of, any oral communications with any person or entity concerning general Recovery Act policy issues, an executive department or agency official shall inquire whether any of the individuals or parties appearing or communicating concerning such issues is a lobbyist registered under the Lobbying Disclosure Act. If so, the official shall comply with paragraph (d) above.

The provisions are part of President Obama’s March 20th directive to heads of executive departments and agencies with the subject, “Ensuring Responsible Spending of Recovery Act Funds.”

The memorandum contains numerous restrictions on contacts between registered lobbyists and executive branch officials on the $787 billion American Recovery and Reinvestment Act, with an emphasis on transparency, speedy reporting of contacts, etc. The requirements are burdensome, will discourage legitimate communications, and one expects they will be inadvertently breached many times. Still, they would seem to pass constitutional muster.

But the restrictions on speaking to public officials about specific projects are an afront to the First Amendment’s protections of speech and the right to petition the government for redress of grievances. Registered lobbyists live under the same Constitution as the rest of America, and prohibiting one class of people from talking to the executive branch on projects financed by the taxpayers runs counter to this nation’s founding principles and current law.

Politico reports the ACLU, the nonprofit Citizens for Responsibility and Ethics in Washington, and American League of Lobbyists will send a letter to the White House protesting the restrictions. More…

• Associated Press, “THE INFLUENCE GAME: Obama limits stimulus lobbying”
• Marketplace, “Lobbyists fight stimulus talk ban”
• Covington and Burling E-mail alert, “New Presidential Guidance Restricts Lobbyist Communications Regarding Stimulus Funds“