The Udall Amendment: When Politics Mean More Than the Constitution

It came as no surprise when, in June, Tom Udall (D-N.M.) and 41 other U.S. senators, Democrats all, proposed a campaign finance amendment to the U.S. Constitution.  Ever since the Supreme Court’s Citizens United decision in 2010, Democrats and their surrogates in the media and allied advocacy groups, worried that the case would work to their political disadvantage, have been on a mission to find some way around it.

So what’s the amendment all about?  S.J. Resolution 19, as it’s called, proposes to allow Congress to regulate contributions to candidates for federal office, and to extend similar power to the states for candidates running for state office.

Language in the joint resolution avers that it would amend the Constitution “relating to contributions and expenditures intended to affect elections.”  But as Floyd Abrams, easily the most distinguished First Amendment expert of our time, said in congressional testimony, the amendment would have been more revealing and accurate if it had said that “it relates to limiting speech intended to affect elections.”

And there, of course, is the rub, since the most highly protected form of speech is political speech.  For the Senate sponsors of this amendment to have clearly and unequivocally stated its impact would have required more candor than they possess, and in addition put themselves in direct conflict with the First Amendment, as found in caselaw, and free speech, as understood by people generally.

Given that this amendment stands no chance whatsoever of making it past all the hurdles that stand in the way (2/3 majorities in both the House and Senate, and ratification by 3/4 of the states), one might wonder why the effort is being made, or why anyone should even bother talking about it.

The answer to the first question is that it’s an election stunt meant to rally the Democratic “base,” while the answer to the second is that sponsorship of this amendment shows that when politicians fear for their own, or their party’s, chances at the ballot box, anything, even the trashing of the most important part of the Bill of Rights, is fair play.

Much as the primary villains in this affair are Democrats and their allies, things might not have gone this far but for the shabby reporting and commentary that has come in the wake of the Citizens United decision.  As detailed in a piece published in Mediaite by Dan Abrams, even mainstream media like the Washington Post and New York Times have made egregious errors in their references to this case:

But reading the New York Times, Washington Post, and watching MSNBC in particular, it is hardly surprising that the public would be confused.  On January 9 (2012), in a front-page piece on the influence of Newt Gingrich supporter Sheldon Adelson, the Times inaccurately reported that Adelson’s $5 million donation to a pro-Gingrich Super PAC “underscores” how the Citizens United case “has made it possible for a wealthy individual to influence an election.” … The opinion, in fact, did nothing of the sort….

The Washington Post has done no better.  On January 11 (2012), Dana Milbank, writing of Adelson’s $5 million donation … asserted that it was “the Supreme Court’s Citizens United decision which made such unlimited contributions possible.”

In fact it was the 1976 case, Buckley v. Valeo, which established the right of wealthy individuals to spend unlimited amounts of their own money for independent political speech.

Some critics of Citizens United point out that with this case the Court undid some earlier decisions, most importantly a challenge in 2003 to the so-called McCain-Feingold law (McConnell v. FEC), where the Court narrowly upheld the constitutionality of that law.

But several years before Citizens United, the Court largely nullified a major section of its McCain-Feingold decision when it ruled, in FEC v. Wisconsin Right to Life, that unless an “issue ad” expressly urged the support or defeat of a candidate it was unconstitutional to forbid its airing on TV close to the time of a primary or general election, something forbidden by McCain-Feingold, and the very issue that was at the center of Citizens United.

Finally, many advocates of campaign finance regulations have mocked the Citizens United decision for empowering corporations with First Amendment-protected free speech rights. But in fact the cases that confirmed First Amendment protection for corporations are decades old, most notably Central Hudson in 1980.

It would be possible to have an honest debate about the constitutionality of campaign finance laws, but not when the facts are twisted and the true motives of the disputants hidden from view.

 The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article was first  published by USA Today, on July 13, 2014.

‘Citizens United and Its Critics’

The Yale Law Journal has just published online an article by Floyd Abrams.  In language that is stirring in the power of its logic and elegance, yet solemn as a wake, the famed constitutional lawyer writes of his dismay over the way so many scholars and journalists have treated the Supreme Court’s decision in Citizens United, which largely overturned the law commonly called McCain-Feingold.

Abrams is neither surprised nor disappointed that these critics didn’t like the decision; his despair stems from their failure even to acknowledge the most obvious First Amendment aspects of the case.  They have, he says, treated the ruling “as a desecration.”

Many people will review this article narrowly, in that they will focus their comments, pro and con, on the law and facts of the case at issue.  But I view it from a wider perspective.  I think it’s one of the grandest examples in recent memory of the courage that’s required these days to defend and promote free speech even-handedly.

More than this, I think it guarantees, if any such were needed, that Floyd Abrams will go down in history as the greatest First Amendment champion of our era.

In part it has to do with the gentleman’s style.  Far from engaging the critics with language (like their own) that vilifies, Abrams flatters some of them for their scholarship.  Rather than retreat to the safety of quiescence or worse, he calls out even such as The New York Times, his client in the celebrated Pentagon Papers case.  And rather than indulge in any sort of self-pity, Abrams doesn’t even mention the scurrilous attack on him (because he wrote an amicus brief in opposition to McCain-Feingold) by Keith Olbermann, who predicted that Abrams “will go down in history as the Quisling of freedom of speech in this country.”

Summing up the essence of his argument, Abrams writes: “When I think of Citizens United, I think of Citizens United.  I think of the political documentary it produced, one designed to persuade the public to reject a candidate for the presidency.  And I ask myself a question: If that’s not what the First Amendment is about, what is?”

But enough of this.  Abrams’s piece is so powerful that nothing I say can embellish it.

Read it, and learn.
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

The DISCLOSE Act Creeps Along

Sometime before the end of the world (which is to say any day now) it’s going to occur to our congressional leaders that the United States is facing some actual problems that might usefully be addressed.  In the meantime, though, the expectation is that they’ll just keep lobbing into the hopper things like the DISCLOSE Act.

As mentioned in an earlier blog, the legislation is formally titled the “Democracy Is Strengthened by Casting Light on Spending in Elections” Act.  And right there you have a measure of the collective wit of the bill’s sponsors.

Having cleared the House last month, the legislation is now in the Senate where its fate is unclear.  There’s talk of a Republican filibuster and of Democratic weariness.  But never mind the horse race aspects; we can trust our political reporters to handle that.  Of much greater importance are the myriad things that are wrong with the bill, divisible in parts between those that are just routinely outrageous, and those that are uncommonly so.

Among the former are the carve-outs exempting special interest groups like AARP and the NRA, and the transparently political rush to pass the legislation before the fall elections.  But the worst aspects of the bill are those that are also the most constitutionally infirm.

The bans on direct expenditures by government contractors and TARP recipients (with no similar limitations put on unions), and the speech-chilling threat of harassment inherent in some of the disclaimer and disclosure obligations, are sure to be challenged in court if the DISCLOSE Act is passed and signed into law.

It’s rarely a prudent thing to predict the outcome of any matter before the Supreme Court.  But considering what appears to be the support there for the notion that the speech at issue enjoys constitutional protection, it’s hard to see the Court upholding a bill that, for instance, restricts the First Amendment rights of organizations just because they happen to be government contractors.

In the main, The Media Institute’s opposition to McCain-Feingold has focused more on that legislation’s impact on “issue ads” rather than direct political contributions.  But given the mischief, not only inherent in but positively intended by the bill’s sponsors, the hope here is that, whether by filibuster or force majeure, the DISCLOSE Act will be put to rest in the Senate.

As they say in the ad, “Just Do It.”

Citizens United and the Commentariat

Nothing’s quite so inspiring as the sight of journalists, in high dudgeon, trashing the First Amendment.  Such has been the rule since last Thursday, when the Supreme Court issued its opinion in the campaign finance case called Citizens United.

For the uninitiated, the cause of the hysteria, at places like The New York Times and The Washington Post, is the Court’s entirely correct decision to liberate political speech from the clutches of the Federal Election Commission, such that labor unions, for-profit and nonprofit corporations will hereafter be able to spend general funds on the placement of issue ads and other kinds of what the FEC refers to as “electioneering communications.”

Because campaign finance “reform” has always been a hotly politicized issue, it’s not surprising that politicians, from the White House to Congress, have weighed in on this issue with more heat than light.  But it’s something else again to see journalists – all of whom zealously guard and enjoy their own First Amendment rights – turn a blind eye to those same rights where they’re someone else’s.

The journalists’ criticism of the Court’s decision is (1) that it is unnecessarily overbroad; and (2) that it will allow corporations (by which they mean large for-profit corporations) to dominate the political environment by the fact, or threat, of campaign advertising.

Even if one takes these journalists at their word – that their motive is a value-free concern for the political process rather than a tawdry reflection of their own political biases – we can say without fear of contradiction that, at least in this regard, they value the political process more than they value free speech.

Among the citizenry generally, such sentiments would be neither unexpected nor especially hurtful, but when they issue from journalists they are both.  This, because as people who are professionally engaged in such matters know, the Speech Clause of the First Amendment is not divisible by its applications.  It doesn’t apply just to the print media or broadcasting, news or entertainment, professional journalists or people at large, but to all of these and then some.

And the simple truth is that if you weaken the First Amendment in any area you weaken the whole of it.  This comes about because of the way that precedent is applied, not just in the courts but in policymaking venues as well.

Corporations enjoy constitutionally protected speech rights even where the speech in question is just commercial speech (speech that does no more than propose a commercial transaction.)  There’s no question about this.  There is lots of case law, most notably in Central Hudson.  Given this, how much greater is the value, under the Constitution, of their political speech?

The constitutional weakness in the journalists’ criticism of Citizens United to one side, they are also wrong on its political effects.  Corporations, particularly large and publicly owned corporations, are loath to spend their general funds on election campaigns.  This, because they know that, by doing so, they will inevitably attract criticism from some of their stockholders, and from the disfavored party and candidate(s), in any given election.  Corporations much prefer to stay out of election contests, and to allocate even their PAC money to incumbents, or to both incumbents and challengers.

And what if, despite the general aversion, it sometimes happens that corporations do spend general funds on election campaigns?  Given their reluctance to get involved in this way, perhaps the public ought to hear what they have to say.  It’s not, after all, as though such corporations are without their constituencies.

Indeed, when you consider the vast number of stakeholders that any large company has among its employees, stockholders, vendors, and customers, the company’s views are vastly more representative and diverse than those, say, of the editorial board of The New York Times.

As for the argument that the Supreme Court overreached in this case, a couple of observations.  First, while a number of commentators are now saying that the Court should have allowed the Citizens United film ("Hilary: The Movie") to be broadcast without going further, that’s a point they didn’t make before the decision came down.

Much more importantly, this criticism ignores the history of this case, most importantly oral argument when it first came before the Court, on March 24 of last year.  It was at that time that the government, which was there to defend McCain-Feingold in the person of deputy solicitor general Malcolm Stewart, inadvertently spelled out just how speech-killing our campaign-finance system might be.

Asked by Justice Alito if the government believed McCain-Feingold would permit like restrictions were the product distributed on the Internet, or as a DVD or a book, Stewart responded that it could be applied to all of those, that it could even require banning a book that made the same points.

As Bradley Smith, writing in National Affairs, put it:

There was an audible gasp in the courtroom.  Then Justice Alito spoke, it seemed, for the entire audience: ‘That’s pretty incredible.’  By the time Stewart’s turn at the podium was over he had told Justice Anthony Kennedy that the government could restrict the distribution of books through Amazon’s digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.

In other words, it wasn’t until after they had heard this – straight from the horse’s mouth as it were – that the Court issued, in June, its surprising order that the case be reargued and expanded to include two of the Court’s earlier rulings.

Viewed from a First Amendment perspective, McCain-Feingold was the worst piece of legislation ever enacted and subsequently upheld as constitutional.  That so many journalists are unhappy with its undoing is a black mark on their profession and on them as individuals.

First published here on The Huffington Post, Jan. 26, 2010.

How Sweet It Is!

The opinion handed down today in the Supreme Court re McCain-Feingold is good news for everyone who values free speech in general, and political speech in particular.  The relief it grants to labor unions, nonprofit and for-profit corporations, who are now free to sponsor issue ads within close proximity to federal elections, is particularly gratifying and long overdue.

As congressional proponents of the Bipartisan Campaign Reform Act scramble to write legislation in an attempt to work around the Court’s decision, they will now have to confront this daunting fact: As of today, speech of the sort that was at issue in this case is constitutionally protected under the First Amendment.


A Unitary First Amendment – Redux

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.

“[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  What an extraordinary statement for the Chief Justice of the United States to make when one considers the Supreme Court’s long history of allowing Federal Communications Commission (FCC) content-based regulation of broadcasting and other electronic media!

Chief Justice Roberts made this statement in last week’s oral argument of Citizens United v. Federal Election Commission.  Citizens United, involving “Hillary: The Movie,” is the little case that could – could just restore a strong measure of freedom of speech in the most critical of all contexts, namely political speech.

As described in an earlier post occasioned by the first round of oral argument in this case last spring, the narrow issue is the provision of the McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA) that bans the use of corporate funds for “electioneering communications” via broadcast, cable, or satellite close to an election.  In the earlier argument some members of the Court were astounded by the government’s contention that Congress also would have the constitutional power to similarly ban printed material, including books.
This apparently led those members of the Court who long have been troubled by limitations on political speech imposed in the guise of campaign finance reform to set re-briefing and rearguing for an unusual and extended one-day September session.  And, the Court broadened the issue for rehearing by asking the parties to discuss whether the Court should overrule not only that part of its 2003 opinion in McConnell v. F.E.C. upholding the specific BCRA provision, but also the Court’s 1990 opinion in Austin v. Michigan Chamber of Commerce.  In Austin, over strong dissents, the Court upheld a state’s restrictions on independent expenditures from general corporate funds for ads supporting or opposing a candidate for state elective office.

Not surprisingly, the Court’s actions with respect to Citizens United prompted more than 40 amicus briefs with what the New York Times called “an array of strange bedfellows and uneasy alliances” and set the stage for high drama.  How far will the Court go in affirming the political free speech rights of corporations?  

Arguing briefly for Senator Mitch McConnell as amicus, Floyd Abrams reminded the Court that in New York Times v. Sullivan the Court eschewed available narrow grounds to resolve the case and instead issued a broad ruling to fully vindicate the vital First Amendment interests at stake.  And he told Justice Sotomayor that, similarly here, this is the way the Court would do more good than harm.

Solicitor General Elena Kagan, making her debut appearance on behalf of the FEC, tried to reassure the Court that the government’s position on printed campaign speech had changed.  Don’t worry, she suggested, the FEC has never tried to ban a book, though when pressed she immediately stated a pamphlet might be different.  And this is when Chief Justice Roberts made his comment about not relying on FEC bureaucrats to protect the First Amendment.

But the Court has left countless First Amendment matters in the hands of the government bureaucrats at the FCC at least since Justice Frankfurter’s 1943 opinion in the seminal NBC v. U.S. case in which, in a single paragraph, he subordinated the First Amendment to the public interest standard of the Communications Act.  This later caused Professor Harry Kalven to comment that: “The passage catches a great judge at an unimpressive moment.”  

Over the years, the Court’s deference to the FCC has allowed all manner of infringements on free speech in the name of the amorphous public interest, from the now-defunct (but perhaps soon to be resurrected in some version) fairness doctrine, to the recent debacle over broadcast “indecency,” and maybe to a threatened similar campaign against violence in the media.

But members of the FCC, no less than of the FEC, have no expertise or competence in First Amendment matters.  This is not a comment on any present or former members as individuals; rather it is the basic recognition that the First Amendment disables any government bureaucrat from claiming or exercising any province over matters of free speech or free press.  “Congress shall make no law” is a straightforward “hands-off” policy for government bureaucrats.

During last week’s argument of Citizens United, Justice Breyer suggested to Ted Olson (representing Citizens United) that Congress had a compelling interest for the restrictions it enacted and thought it had narrowly tailored them.  So, the justice asked, should the Court really second-guess Congress?  Mr. Olson forthrightly replied, “You must always second-guess Congress when the First Amendment is in play.”  Exactly so, regardless of the medium of communication at issue, and a fortiori must courts stringently second-guess the FCC when it is infringing free speech, directly or indirectly, as it is wont to do all too frequently.

Whatever the ruling in Citizens United, we can only hope the chief justice’s words reverberate loudly the next time the FCC seeks to sustain an infringement on free speech or press in the name of the public interest.

Citizens United and ‘Hillary: The Movie’

If you’re feeling, like so many of us, that our life and times are too harmonious, smart, and principled, you might welcome something completely jumbled, uninformed, and hypocritical.  If so, here’s just the thing: an article by E.J. Dionne of The Washington Post.

The subject of Dionne’s piece is a case — Citizens United v. FEC — scheduled for oral argument today in the Supreme Court.  Like so many when reporting this story, Dionne employs the journalistic equivalent of the magician’s trick of misdirection when telling his tale.

Thus does he direct the reader’s attention not to the specifics of the case itself — which is whether the execrable campaign finance laws (read: McCain-Feingold) can constitutionally suppress free speech, and political speech at that — but to the imaginary threat that, if decided wrongly, the case “could surrender control of our democracy to corporate interests.”

What, you might wonder, could cause such fear and trembling?  A plot by corporate giants to make every man, woman, and child read The Wealth of Nations?

Well, not if it’s the Citizens United case.  Because that case isn’t about a corporate giant, but rather a small nonprofit activist organization, and its “crime” was the production and would-be distribution of a political film, called “Hillary: The Movie.” 

Now you might not like this film (if you’re a fan of Hillary you definitely wouldn’t like it), but nothing could be clearer than that this is political speech, the kind that, outside the confines of the election laws, has always occupied the highest reaches of constitutional protection under the First Amendment.

Dionne’s misdirection technique also turns a blind eye to another interesting fact: The campaign finance laws that prevent the airing of issue ads x number of days before federal elections don’t apply to newspapers, but only to the broadcast media, cable and satellite included.

Call it cynical, but some might wonder if this fact helps explain the embrace of McCain-Feingold by so many newspaper columnists and editorialists, and newspaper publishers, for that matter.

One of the problems attending any attempt to create what our associate, Professor Larry Winer, refers to as a “unitary” First Amendment is that so many people on the front lines of this battle, like reporters, demonstrate little or no interest in defending the First Amendment rights of anyone but themselves.

Thus can one count on one hand the number of mainstream media reports that have been critical of campus speech codes, or any manner of political correctness– or the suppression of political speech, as demonstrated in Citizens United.

It’s not a pretty picture.

Bad Prescription for the First Amendment


It’s a good thing the USA isn’t experiencing any financial or economic problems, because if we were someone might notice that plans being hatched in committees of both the House and Senate will hurt all kinds of American businesses—and trash the First Amendment in the process.

The plans that are the subject of this note would deny the pharmaceutical industry—a perennial whipping boy—the right, afforded every other for-profit corporation, to deduct for tax purposes their advertising and marketing expenses.

The upshot of it all? An immediate hit to advertising agencies and to the media, all of whom are struggling in an economy that is tanking, and to the profitability of pharmaceutical companies, thereby putting downward pressure on their dividends to shareholders.

The impetus behind these congressional schemes is the frantic search for additional tax revenue as might (but won’t) cover the extraordinary costs, estimated at $1 trillion, associated with health care “reform.”

Of special note in these parts is the breezy dismissal by their congressional authors of the unconstitutional aspects of such legislation. From early landmark cases, such as Virginia Pharmacy and Central Hudson, to the present day, the Supreme Court has accorded commercial speech, as it’s called, a significant and growing amount of constitutional protection under the First Amendment.

Never mind. As demonstrated time and again, lawmakers are inclined to pass legislation without regard to its constitutional infirmities, leaving it to the courts to sort things out. Sorry to say, they are aided in this by a press corps that has demonstrated little or no interest in protecting the First Amendment rights of anyone other than themselves. (See, for instance, the coverage of McCain-Feingold.)

So it is that there’s a certain irony in the effort now underway by a number of media companies to resist this legislation. Having failed for years to explain to their readers and viewers how and why commercial messages too are protected speech, they now find themselves in the unhappy position of having to pay for that neglect.

None of which is to say that this legislation is deserved or a good idea. It is neither. It is, instead, just more economic mush issuing from people who are neither informed nor principled.


A Unitary First Amendment

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.
In last week’s Supreme Court oral argument of the “Hillary: the Movie” case, Citizens United v. F.E.C., the government attorney apparently perplexed several of the Justices by the breadth of his argument.  His argument, and the responses of some Justices, highlight a crucial aspect of the First Amendment.

Citizens United is a nonprofit corporation that made a 90-minute film sharply critical of Hillary Clinton.  During her presidential campaign it wanted to pay cable companies to make the film available to subscribers free via video on demand.

The McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA), however, bans “electioneering communications.”  This ban prohibits a corporation or labor union from using its general treasury funds for any broadcast, cable, or satellite communication that constitutes express advocacy or its functional equivalent regarding a clearly identified federal candidate within a set time prior to an election.  Electioneering communications, however, do not include news or commentary by a media company, and the statutory ban does not apply to the print media or the Internet.

We are used to media exceptionalism, at least with regard to broadcasting.  That is, throughout its history broadcasting has struggled under a strange First Amendment jurisprudence affording it limited freedom of expression and subjecting it to a panoply of “public interest” obligations that would be constitutional anathemas for any other medium of mass communication.  

Political access rules and requirements for children’s educational programming, for example, fall in this public interest category for broadcasting.  BCRA strangely perpetuates this dichotomous approach by, on the one hand, in effect covering only “television” (broadcast, cable, and satellite), and at the same time exempting from its reach news and commentary in all media.

When pressed by the Justices, the government attorney took the position that the Constitution would allow Congress, if it wished, to extend the statutory ban to print media, a book for example.  To this, Justice Alito replied, “That’s pretty incredible,” going on to characterize the government’s position as allowing it to ban a book about politics, under an expanded BCRA statute, if published by a corporation close to an election.  

Justice Kennedy then demonstrated how bizarre the government’s position is by noting that a book, downloaded by satellite onto a Kindle reader, presumably both would come under the reach of the present statute and, in the government’s view, constitutionally be subject to censorship.  Before long Justice Scalia confessed to being “a little disoriented” because he thought the Court was dealing with the constitutional provision, known as the First Amendment, that he remembers as beginning with “Congress shall make no law.”

BCRA’s restriction on political speech in the guise of campaign finance reform is troubling in its own right.  What great evil of political propaganda justifies this sort of censorship?  But it is good to see members of the Court now “disoriented” by the hopelessly disjointed, media-based approach to First Amendment freedom of expression that the Court itself spawned in the middle of the 20th century and unfortunately maintains in our radically transformed digital era.  

These Justices were incredulous that the government would suggest it could extend a regulation of electronic media to print.  But the disconnect finally should go just as strongly in the other direction – what is prohibited in regulating print media is also prohibited for all media, including broadcasting.

In recent years, the Federal Communications Commission under former chairman Martin pursued a relentless and unwarranted campaign against so-called “indecency” on broadcast television.  The Supreme Court has pending before it a challenge to the Commission’s authority in this area to regulate what no government entity can restrict in any other media.  It would be gratifying if in its decision in the next few weeks the Court finally adopts and applies a unitary First Amendment.

Professor Winer is also the Faculty Editor of Jurimetrics.