McCain-Feingold On The Ropes?
Just as the debate surrounding regulating the health insurance industry moves from the public back to the potential for Congressional action, the Supreme Court, in a highly unusual move, has called for re-argument of a case that has the potential to shatter over one hundred years of precedent on the government’s ability to bar corporations from spending money to support political candidates.
The argument, scheduled for September 9th, will interrupt the Court’s summer break, prompting many to speculate that the Court is set to overrule the 1990 decision Austin v. Michigan Chamber of Commerce, a case that upheld restrictions on corporate spending to support or oppose political candidates. At a minimum the Court is certain to address just how far campaign finance laws such as McCain-Feingold may go in regulating campaign spending by corporations. Briefs in preparation for the argument can be found here and here.
The case involves “Hillary: The Movie,” a documentary-style film made by the conservative advocacy group Citizens United. The movie is described as a mix of political commentary and advocacy journalism that takes an overwhelmingly negative look at Mrs. Clinton’s character and her career. Currently available on the Internet and on DVD, Citizens United had lost a lawsuit against the Federal Election Commission when it sought to distribute it on a video-on-demand service. The FEC prohibited distribution, citing the McCain-Feingold ban on corporate money being used for electioneering. A lower court agreed with the FEC, holding that since the sole purpose of the film was to advocate that Senator Clinton was unfit for office and urging the electorate to vote against her, it fell within the purview of McCain-Feingold.
The case has created some interesting bedfellows, as the ACLU and NRA find themselves defending Citizens United and advocating against the government regulations of corporate campaign spending as violative of First Amendment speech protections. Meanwhile, other liberal and progressive groups such as The Brennan Center, worry that without some kind of meaningful regulation on corporate spending the airwaves will be more saturated with advocacy pieces that would further blur the lines between meaningful political discourse and campaigns of distraction and have sided with the FEC.
Nowhere is this fault-line between First Amendment freedoms and corporate financial heft more apparent than the current battle over reforming the health insurance industry. Already we’ve seen misinformation campaigns conducted by Republican politicians and operatives, with the help of some well-monied corporate backers. If the Court takes a bold stance and holds that regulation of corporate campaign spending violates the First Amendment, then any politician, regardless of party, will find themselves in the cross-hairs of corporate political money. That certainly could endanger any effort and meaningful corporate reform on ANY issue, not just health insurance reform. So while the case represents a watershed moment in First Amendment jurisprudence, it also is poised to solidify, or push-back, the pervasive power of corporate money in political campaigns.
photo courtesy of Photo8 via Flickr.