August 3, 2009

Fighting for political speech in the Supreme Court

By Damien M. Schiff Senior Attorney

Author:  Damien M. Schiff

Last week, PLF filed a friend-of-the-court brief in support of the appellant in Citizens United v. Federal Election Commission.

Citizens United, a conservative nonprofit corporation that specializes in political documentaries with a right-of-center perspective, produced Hillary: The Movie, a feature-length movie, DVD, and companion book that Citizens United wished to advertise and to show beginning in January, 2008. Citizens United was precluded from doing so owing to the prohibition on "electioneering communications" from corporate entities imposed by the Bipartisan Campaign Reform Act (popularly known as McCain Feingold). That law forbids the broadcasting of an electioneering communication within 30 or 60 days of a federal primary or general election. Because in 2008 there was a primary election in nearly every month, Citizens United was effectively barred from broadcasting Hillary: The Movie at all that year. Citizens United therefore challenged the prohibition in district court, lost, and then appealed to the Supreme Court. The case was argued on fairly narrow grounds earlier this spring, but the Supreme Court this June ordered the case to be rebriefed and reargued. The Court’s order strongly hints that it is contemplating the overturning of precedents that severely restrict corporate political speech.

PLF's amicus brief urges the Court to discard two precedents that significantly restrict corporate political speech rights:  Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission.  Both of these precedents hinge upon the premise that government can restrict corporate political speech because the corporate form allows these entities to amass large treasuries and to spend money for political purposes in ways that often are not representative of the general public's view of things.  PLF's brief urges the Court to reject this much-expanded notion of "corruption" and to return to the traditional understanding of quid pro quo corruption as the only appropriate target of government-imposed corporate speech limitations.  PLF's brief also makes the larger point that corproations provide significant societal goods, and that their speech (which really is nothing more than the combined speech of the natural persons who form the corporation) should be encouraged, not censored.

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