Testimony Of Michael A. Carvin on Citizens United

Here is a copy of part of the presentation that Michael A. Carvin presented to the Senate Judicial Committee looks at Citizens United Decision. It basically talks about the first amendment, which involves freedom of speech/press and peaceably assemble and petition representative with grievances, and its involvement in the Citizens United decision by the Supreme Court.

“Notwithstanding the hyperbolic and misleading criticism it has engendered, Citizens United is nothing more than a straightforward, faithful application of fundamental First Amendment principles. The speech involved in Citizens United was pure political speech regarding elections and the democratic process, the kind of speech at the very core of the First Amendment. Therefore, any restrictions on that speech must satisfy the most daunting constitutional standards. Citizens United fairly applied those standards to protect the rights of individuals to participate in independent political speech regardless of whether they choose to join their political voices together in a corporate form.

The predominant criticism of Citizens Untied is the simplistic and meaningless slogan that “corporations are not people.” As a factual matter, this slogan completely misstates the entities actually protected by Citizens United and, as a legal matter, is wholly irrelevant. The “corporations” predominantly silenced by the restrictions were not large, for-profit corporations but were non-profit “corporations,” like Citizens United, comprised of citizens who had united to express their collective views on policy issues and public elections. These “corporations” included the likes of the Center for American Progress, the Natural Resources Defense Council, and the Progressive Donor Network. The Government has no more power to ban these united citizens’ collective, shared viewpoint than it does to ban the speech of the individuals comprising this united front. Indeed, Citizens United enhanced the voice of those groups relative to wealthy corporations. As the Court noted, these small non-profit corporations can be particularly hard-hit by a ban on independent advocacy because, when legal corporate lobbying and a corporate independent-expenditure ban are coupled, the result may be “that smaller or non-profit corporations cannot raise a voice to object when other corporations, including those with vast wealth, are cooperating with the Government.” Citizens United v. FEC, 130 S. Ct. 876, 907 (2010).

In all events, it is quite irrational to suggest that corporations—profit or non-profit—have no First Amendment rights or that a ban on corporate expenditures to convey election-related speech is any different than a direct ban on political speech. No rational person would argue that a law restricting the speech of the New York Times or MSNBC, such as one requiring them to endorse Barack Obama (or Mitt Romney), would be constitutional, even though the speakers are nothing more than for-profit corporations. That basic principle is true regardless of whether the corporate speech is banned directly, or in the form of a prohibition on spending money—on printing presses or broadcast facilities—to disseminate that speech, since all public speech necessarily requires the expenditure of money. Accordingly, advocates of the mindless bromide that corporations have no First Amendment rights must explain why such restrictions on media corporations—those with the greatest access to the political marketplace and thus best positioned to “drown out” contrary voices—would be unconstitutional, but identical restrictions on non-media corporations are somehow permissible. There is no rational support for such an illogical argument, which is one of the many reasons why the Supreme Court has always consistently held that for-profit corporations have First Amendment rights, including the right to speak on election-related issues. See First National Bank v. Bellotti, 435 U.S. 765 (1978).

This basic principle is also mandated by the text and purpose of the First Amendment. First, the notion that the Free Speech Clause of the First Amendment protects only “people” or “individuals” is belied by the plain language of that Amendment. The First Amendment states that Congress “shall make no law . . . abridging the freedom of speech,” without limiting this protection to “individuals” or “persons.” It thus prohibits any restriction on speech, regardless of the source. Again, this reflects the Framers’ understanding that the right to free speech is not limited to certain speakers and is certainly not unprotected because it emanates from a group of individuals who have banned together in order to enhance their collective voice. While “unions” are not people, their speech is protected by the First Amendment because they are a united group of people, even though, unlike non-profit corporations, they are not united for political or public advocacy purposes.

Nevertheless, some argue that for-profit corporations (and unions) can be singled out for discriminatory treatment because their speech will be heard by too many people. But speaker-based discrimination for the avowed purpose of limiting certain speakers’ access to the marketplace of ideas is obviously at war with the fundamental tenets of the First Amendment. That Amendment guarantees access to the marketplace of ideas free from government control because such speech is an inalienable right that cannot be limited by government fiat and certainly not in order to advance the inherently paternalistic notion that government can apportion the people’s access to diverse viewpoints. In a unanimous opinion joined by Justices Brennan and Marshall, the Supreme Court in Buckley v. Valeo, 421 U.S. 1 (1976) succinctly stated this basic truism: “the concept that government may restrict the speech of some elements in our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Id. at 48-49.

The conclusion that our democracy functions best with more speech rather than less speech is correct not only as a matter of law, but also as a matter of experience. Notwithstanding recent uniformed and irresponsible speculation, corporate expenditures and speech in the wake of Citizens United have not overtaken the political marketplace or drowned out speech by individuals acting alone. To the contrary, recent election cycles have seen an explosion of political participation and contributions by individual voters, and no cognizable uptick in corporate political activity.

I am not aware of any major, for-profit corporation running a single political advertisement in its own name. And the data from the 2012 Republican Presidential primary elections completely refutes the overheated rhetoric that corporations are taking over the political world. Each of the eight leading Republican Presidential candidates was supported by an independent expenditure-only committee—the so-called Super PACs. Notwithstanding the fears of some that wealthy for-profit corporations would dominate politics, we now know from the disclosures filed with the FEC that not a single one of the Fortune 100 companies contributed a single cent to any of these eight Super PACs. See Br. Amicus Curiae of Senator Mitch McConnell at 7, American Traditional Partnership, Inc. v. Bullock, No. 11-1179 (filed Apr. 26, 2012). The data reflects that the Super PACs supporting three of the eight candidates received no corporate donations at all and six of the eight received none from public companies. So the much-predicted tsunami of corporate expenditures never came. See id. at 10.

As Bradley Smith, a former chair of the FEC, has correctly noted, “[t]his is our second election under Citizens United . . . In 2010, turnout was up from 2006, we had more competitive races than at almost any time in recent memory.” Interview by Lee Pacchia of Bloomberg Law with Bradley Smith, Former Chair, Federal Election Commission (Jan. 5, 2012).

This outcome was entirely predictable. For years, states have been acting as laboratories experimenting with various levels of restrictions or no restrictions at all on corporate independent political expenditures. At the time Citizens United was decided, 26 states imposed no limits at all on the amount of independent expenditures by for-profit corporations. Citizens United, 130 S. Ct. at 908. Yet there was and is no basis to conclude that corporate spending in those states—which included states rarely associated with scandals, such as Virginia, Washington, and Utah—had overwhelmed other political voices or corrupted the political process. The same is true today in the world where Citizens United protects the right to independent political speech by individuals who decide to unify their voices in a corporation.”


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