26 Jan 2010

No monetary restriction on political campaigning: US Supreme Court

In a recent decision, the United States Supreme Court by 5:4 majority has overruled its previous decision invalid and unconstitutional the law placing a cap on the spendings by corporations for supporting candidates during elections. The Supreme Court declared that its earlier decision of upholding the law placing the cap was violative of the First Amendment to the US Constitution which establishes the right to free speech and since political speech was an inherent part of such right, no distinction could be made on this ground between an individual and a corporate entity.

The Supreme Court was dealing with a challenge made by a non-profit corporation in the name and style of 'Citizens United' which sought to promote an ad-campaign against Hillary Clinton during the prelude to the previous United States President elections. However it faced a barrier in this regard in as much as a federal law (Bipartisan Campaign Reform Act of 2002) prohibited "corporations and unions from using general treasury funds to make direct contributions to candidates or inde-pendent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, inconnection with certain qualified federal elections". The action was initially brought before the United States District Court for the District of Columbia but being dissatisfied with its decision, the corporation appealed before the US Supreme Court. 

In this factual background, the Supreme Court thought wiser to reconsider its earlier decision in as much in its opinion the law under challenge had the potential of being used as a medium by the Government to silence any person during an election campaign. The Court inter-alia observed;
Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend onpolitical communication during a campaign,” that statute “necessarily reduces the quantity of expression by restrict-ing the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Buck-ley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government couldrepress speech by silencing certain voices at any of the various points in the speech process. See McConnell, supra, at 251 (opinion of SCALIA, J.) (Government couldrepress speech by “attacking all levels of the production and dissemination of ideas,” for “effective public communi-cation requires the speaker to make use of the services ofothers”). If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restric-tion on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14–15 (“In a republic where the people are sovereign, the ability of the citizenry to make informedchoices among candidates for office is essential”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition toenlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaignfor political office.” Eu v. San Francisco County Democ-ratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see Buckley, supra, at 14 (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution”).
For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadver-tence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464 (opinion of ROBERTS, C. J.). While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (KENNEDY, J., concurring in judgment), the quoted language from WRTL provides asufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here.
Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or view points. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (striking down content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.
Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a consti-tutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some andgiving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. 
On the aspect of restriction on electoral expenditure, the Supreme Court opined inter-alia that;
Thus the law stood until Austin. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] his-tory.” 494 U. S., at 695 (KENNEDY, J., dissenting). There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a spe-cific candidate. Michigan law, however, prohibited corpo-rate independent expenditures that supported or opposed any candidate for state office. A violation of the law was punishable as a felony. The Court sustained the speech prohibition. ...
It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, includingindividuals and the media, use money amassed from the economic market place to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. See id., at 707 (KENNEDY, J., dissenting) (“Many persons can trace theirfunds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary”). ...
Austin’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. See McConnell, 540 U. S., at 283 (opinion of THOMAS, J.) (“The chilling endpoint of the Court’s reasoning is not difficult toforesee: outright regulation of the press”). Cf. Tornillo, 418 U. S., at 250 (alleging the existence of “vast accumula-tions of unreviewable power in the modern media em-pires”). Media corporations are now exempt from §441b’s ban on corporate expenditures. See 2 U. S. C. §§431(9)(B)(i), 434(f)(3)(B)(i). Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporationsoften “have little or no correlation to the public’s support”for those views. Austin, 494 U. S., at 660. Thus, under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on parwith other media entities. There is no precedent for per-mitting this under the First Amendment. ...
Austin interferes with the “open marketplace” of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008); see ibid. (ideas “may compete” in this marketplace “without government interference”); McConnell, supra, at 274 (opinion of THOMAS, J.). It permits the Government to banthe political speech of millions of associations of citizens. See Statistics of Income 2 (5.8 million for-profit corpora-tions filed 2006 tax returns). Most of these are small corporations without large amounts of wealth. See Supp.Brief for Chamber of Commerce of the United States of America as Amicus Curiae 1, 3 (96% of the 3 million busi-nesses that belong to the U. S. Chamber of Commerce have fewer than 100 employees); M. Keightley, Congres-sional Research Service Report for Congress, Business Organizational Choices: Taxation and Responses to Legis-lative Changes 10 (2009) (more than 75% of corporationswhose income is taxed under federal law, see 26 U. S. C. §301, have less than $1 million in receipts per year). This fact belies the Government’s argument that the statute is justified on the ground that it prevents the “distortingeffects of immense aggregations of wealth.” Austin, 494 U. S., at 660. It is not even aimed at amassed wealth.
The censorship we now confront is vast in its reach. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” McCon-nell, supra, at 257–258 (opinion of SCALIA, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result). By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters onwhich persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B.Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrust-ing the people to judge what is true and what is false.
The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public. This makes Austin’s antidistortion rationale all the more an aberration. “[T]he First Amendment protects the right of corporations to petition legislative and administrative bodies.”
In this background, inclined to overrule its earlier decision, the majority held that the times had changed since its earlier decision in as much as the decision notes that "informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers havebecome adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials. Rapid changes in technology—and the creative dynamicinherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effectiveway to convey a political message. Soon, however, it may bethat Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were createdwith corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based onthe corporate identity of the speaker and the content of the political speech."

Given this enunciation of law, the majority decision concluded thus
"Due consideration leads to this conclusion: Austin, 494 U. S. 652, should be and now is overruled. We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on thebasis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations."
There is mixed reaction from political fields. The President of the United States has openly criticized this decision being of the opinion that the decision "opens the floodgates for an unlimited amount of special interest money into our democracy" whereas the Republican members of the US Congress have welcomed this decision. As for the Indian angle, a Times of India correspondent comments on this decision in the following manner: "Imagine such a judgment coming from the Indian Supreme Court. Immediately, the knives would have been out against the judges and the rumour mills would have gone berserk circulating that the judges, who favoured open funding of candidates in elections, were bought over by corporate honchos."

The decision is available at the website of the Court at this link

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