American politics

Freedom to spend

The Supreme Court rules that businesses and unions may fund political messages in elections

BY THE narrowest of majorities, America's Supreme Court ruled on Thursday January 21st that Congress may not bar corporations and unions from paying to disseminate political messages at election time. The ruling is arguably a blow for free speech, although critics of the decision quickly concluded that it would lead to big business buying elections.

The case concerned “Hillary: The Movie”, a 90-minute documentary which portrays Hillary Clinton as a power-crazed gorgon. It is a dreary and unbalanced piece of hack work, but clearly protected by the Constitution. “Congress shall make no law…abridging the freedom of speech,” says the First Amendment. Not “thoughtful, judicious speech”. Just “speech”. Yet the makers of “Hillary: The Movie” were forced to drop plans to distribute their work via cable for fear of being fined or jailed.

The Federal Election Commission ruled that the film was an attack ad, not a documentary, and therefore subject to America’s confusing mess of campaign-finance restrictions. The conservative group that made it, Citizens United, wanted to release it during the Democratic primaries in 2008. Under the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold after its sponsors in the Senate, that was not allowed.

Among other things, McCain-Feingold forbids corporations or unions from paying to broadcast electioneering messages about candidates within 30 days of a primary or 60 days before a general election. Citizens United is a non-profit group mostly funded by individuals, but since it also accepted donations from private firms, it was muzzled.

Advocates of such curbs argue that if corporations can spend freely at election time, their deep pockets will give them undue influence and corrupt the political process. In a furious dissent, Justice John Paul Stevens declared that the ruling “threatens to undermine the integrity of elected institutions across the Nation”.

Until today, firms that wanted to express political views near election time had to form a political action committee (PAC), clear many regulatory hurdles and accept only limited amounts of money from each donor. Fans of McCain-Feingold denied that this chilled free speech. But the court’s majority, led by Justice Anthony Kennedy, disagreed.

The rules are so confusing that even experts struggle to follow them. Senator John McCain, who co-wrote the bill, was accused of a serious violation of it during his presidential campaign in 2008. Big firms with expensive lawyers can usually navigate the system, but small players flounder. In the states, campaign-finance laws have been used to stifle debate. Prosecutors in Washington state claimed that favourable radio coverage of an anti-tax campaign was a “donation” that the campaigners should have disclosed. In Colorado, a group of homeowners protesting against plans to incorporate their neighbourhood into a nearby town were sued for not registering as a PAC. Both groups won, but they needed lawyers.

The effect of the law, said Justice Kennedy, is that “a speaker who wants to avoid threats of criminal liability…must ask a governmental agency for prior permission to speak.” That, he said, was “analogous to licensing laws implemented in 16th- and 17th-century England” which is precisely the sort of thing that “the First Amendment was drawn to prohibit”.

The new ruling leaves several restrictions intact. Corporations may not donate money directly to candidates. Electioneering messages paid for by a firm must clearly disclose that firm’s identity. Individuals face strict limits on how much they may give to a candidate, so the kind of big donations that jump-started Eugene McCarthy’s anti-war candidacy in 1968 are still illegal. Incumbents still enjoy a huge fund-raising advantage, and very rich candidates who can pay for their own campaigns enjoy an even bigger one. McCain-Feingold has failed utterly to keep money out of politics. The last presidential election was the most expensive ever.