The House has just voted to pass H.R. 5175, the DISCLOSE Act, 219-206, legislation to deprive people of their constitutional rights based on who is speaking and the content of their speech. The debate was profoundly cynical as supporters of the bill claimed it was all about disclosure, even as they carved out specific exemptions that let labor unions escape transparency and engage in political activities denied to corporations and other, less favored organizations.

The cynical, partisan nature of the bill can be demonstrated by two things:

1. The bill, once signed into law, goes into effect within 30 days, with no opportunity for the Federal Election Commission to draft rules to guide the implementation and enforcement of the law. The bill includes criminal penalties for violations, but provides citizens no clear way to know whether they might be committing a violation. The uncertainty and risk will chill political speech — just time for the November 2010 elections.

2. The bill does not contain any provisions to permit expedited judicial review. The McCain-Feingold campaign finance regulation bill allowed challenges to the law to move immediately to  a three-judge panel in U.S. District Court for the District of Columbia. If supporters of H.R. 5175 truly believed their bill was constitutional, they would have embraced such an expedited review. Instead, the provision was kept out of the bill, and a motion to recommit from Rep. Dan Lungren (R-CA) that included McCain-Feingold-like review language was voted down, 208-217. (Roll Call Vote.)

It’s a sad day for the Constitution.

UPDATE (5:10 p.m.): We Tweeted the entire debate, starting at 10:50 a.m. or so. You can follow the posts here. The morning debate on the rule featured the low points of the day, including behavior that indicated a belief that saying “BP! BP!” amounts to an argument.

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.

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?

(continue reading…)

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.