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McCain-Feingold On The Ropes?

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.

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photo courtesy of Photo8 via Flickr.

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33 comments

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7:10PM PDT on Sep 11, 2009

One can only hope this nightmarish intrusion on free speech is aborted and soon.

McCain-Feingold was a major reason not to vote for him (McCain) in 2008 for those of us not of either the Repub or Dem parties. It's obvious why you both love this accursed law, it helps cut out your competition who cannot siphon off money from the Treasury to support their campaigns and incumbents.

7:42PM PDT on Sep 8, 2009

LLoyd, I agree with you about removing the M-F rule from our elections, I also think that organizations like ACORN should be banned from ever receiving Federal money again. They have already been found guilty of election fraud, and they are made up of several attorneys that use to work with Obama, now they are getting millions to become his hired guns to see he gets elected. Sad, but true.

10:14AM PDT on Sep 2, 2009

McCain-Feingold places the same resrictions on unions as corporations and they are as ineffective as the whole law was intended to be just a placebo to quiet the pesk citizenz who continue to think that they actually have something to do with government. Also no one actually enforces the laws that prohibit the use of church monies,resources or property for political purposes or politicking from the pulpit. And so long as PR/lobbyist firms can be hired by corporations,churches or the rich create 'non-partisan citizen' organizations, forge consituent letters to elected officals or employees be 'encouraged' to be bussed to political events armed with talking points and agendas etc. McC-F is a sham.With McC-F out of the way may be America will wake to the rings through their noses!"Truth in Political Advertizing Law" with big swift teeth and the funding to use them that requires truth in the message and who actually paid for the message would be a start. But until courts stop striking them down 'as there is no reasoonable expectation of truth in political advertizing' forcing Americans exercising their most important civil act and there by 'informed consent of the governed' into a deep grave dug with lies, half-truths and misinformation, like the that from the Lewin Group, a wholly owned subsidiary of United Health Group,particularly favored by Republicans against health care reform; all the money watching in the universe will serve no purpose!

6:18PM PDT on Sep 1, 2009

Big Business is already permitted too much power by congresspeople accepting gifts for favors from lobbyists - if the Supreme Court finds for corporations having the same rights as individual citizens, the damned corporations will really run the country!

5:22PM PDT on Sep 1, 2009

Some here clearly have no idea what they're talking about. Period. Corporations have no constitutional right to free speech, period. All rights of corporations are rights granted to them by the government. Prior to the civil war, many states barred corporations from donating to politicians. Corporations were wrongly given the right of personhood by a pro-corporate court, and that is the wrong that needs to be remedied.

4:11PM PDT on Sep 1, 2009

The Supreme Court and the ACLU are wrong to equate free speech with campaign money. The test is whether the money is used to ADVOCATE ONE SIDE, as genuine speech would, or whether it is used to BRIBE BOTH SIDES to get the main candidates and parties to do their bidding, regardless of who wins, which is not speech but a kind of double-speak. This should apply to corporations and any other collective entity, like unions and NGO's, and even to individual citizens, who are the only entities with constitutional rights to vote for candidates they advocate, and therefore the derived right to "speak" in an election with monetary contribuions (UNbundled into any collective contribution, of course). Collectives could still lobby any officeholder between elections, as long as there are strict limits to prevent even the appearance of bribes.

3:09PM PDT on Sep 1, 2009

I am curious if all of you who so quickly demonize corporations as unworthy of first amendment rights since they are a non-person would also advocate Unions be placed under the same restrictions? Let's take it a step further and add "trial attorney organizations" to the groups who are not really "people". How about non-profit "corporations" who also are able to get those big corporate level tax breaks?

Should any of them have first amendment rights?

How are they different?

See where I am going here?

12:57PM PDT on Sep 1, 2009

Stephen you could not be more wrong. The Constitution provides for free speech (meaning it cannot be trounced upon by "government") for everyone. It doesn't discriminate their legal status (a corporation is a group of people with a legal definition) nor what group they represent. Absurd.

12:54PM PDT on Sep 1, 2009

Joanne B, we have laws against fraud (lying). I am all for the ability to sue government and it's officials, elected or otherwise, when they commit fraud against the people (they do so often enough). I also fine with the ability to sue any political group (corporate or otherwise) when they commit fraud. While there must be tort reform to prevent frivolous lawsuits, it would maintain free speech while punishing those most egregious acts of fraud you speak of.

11:45AM PDT on Sep 1, 2009

The Constitution provides no right of freedom of speech to corporations. It provides them no rights of ant kind, not even the right to exist. Corporations exist at the sufferance of the people and therefore have no legal recourse concerning any rights not given to them by the people through their legislators. The people, through their legislators, have the absolute right to remove any rights so given. The constitution also gives them no right to participate in the political process.

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