Citizens United Rhetorical Analysis
In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then- Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive re- lief, arguing that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer, disclosure, and reporting requirements, BCRA §§201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a prelimi- nary injunction and granted appellee Federal Election Commission (FEC) summary judgment.
a) Citizen United’s narrower arguments—that Hillary is not an “electioneering communication” covered by §441b because it is not “publicly distributed” under 11 CFR §100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Comm’n v. …show more content…
Wisconsin Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b uncon- stitutional as applied to speech that was not “express advocacy or its functional equivalent,” id., at 481 (opinion of ROBERTS, C. J.), deter- mining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” id., at 469–470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441b’s ban for nonprofit corporate political speech funded overwhelming by individuals—are not sustainable under a fair reading of the statute. Pp. 5–12.
b) Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b’s facial valid- ity. Any other course would prolong the substantial, nationwide chilling effect caused by §441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government’s litigating position; (2) substantial time would be required to clarify §441b’s application on the points raised by the Government’s position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating po- litical speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmen- tal agency for prior permission to speak. The restrictions thus func- tion as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amend- ment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 12–20.http://www.supremecourt.gov/opinions/09pdf/08-205.pdf
c) In early 2008, the case, known as Citizens United v. Federal Election Commission was brought to the United States District Court for the District of Columbia. This court sided with the Federal Election Commission (FEC) that Hillary: The Movie could not be shown on television right before the 2008 Democratic primaries under the McCain-Feingold Act.[3]
d) The Supreme Court docketed this case on August 18, 2008,[4] and heard oral arguments on March 24, 2009.[5][6][7] A decision was expected sometime in the early summer months of 2009.[8] However, on June 29, 2009, the Supreme Court issued an order directing the parties to re-argue the case on September 9 after issuing briefs on larger issues. The court ruled 5-4 in 2010 that spending limits in the McCain-Feingold act were unconstitutional, allowing essentially unlimited contributions by corporations and unions to political action committees. This was one of the most controversial rulings of the term. http://en.wikipedia.org/wiki/Hillary:_The_Movie
e) Under the federal Bipartisan Campaign Reform Act of 2002 (better known as McCain-Feingold after its chief sponsors, Senators John McCain of Arizona and Russ Feingold of Wisconsin), corporations and unions could make campaign expenditures through separate funds, called political action committees (PACs). Those PACs were limited in where they could get their funds and could not spend the money of the union or corporation itself. Under the 2002 law, the PACs could donate to candidates and could make independent expenditures to support candidates, but these were subject to limits, regulations, and disclosure requirements.
f) Citizens United dramatically altered that aspect of the campaign finance landscape.
The Court ruled that corporations and unions are entitled to the protection of the First Amendment for political speech and that restrictions on the ability of corporations to speak directly, rather than through separate PACs, are unconstitutional. Finding that the restrictions must survive strict scrutiny – that is, must be narrowly tailored to achieve a compelling interest – the Court rejected the Justice Department’s argument that the law was essential to prevent corruption in the political process. Writing for the majority, Justice Anthony Kennedy explained that “[t]he fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected
officials.”
g) Enter the Montana Supreme Court. Montana law is, in some ways, where federal law was before Citizens United. Originally passed by the voters of Montana in 1912, the state law now prohibits corporations from spending money to support or oppose candidates. But under Montana law, separate PACs can be created to contribute to candidates or to make independent expenditures; these PACs may be funded only by contributions from shareholders, employees, or members of a corporation.
h) The law was challenged by several corporations and associations. Deeming the case governed by Citizens United, the state trial court declared the Montana law unconstitutional. But the Montana Supreme Court took a different approach and upheld the law by a vote of five to two. When the law was passed, the Montana Supreme Court reasoned, there was abundant corruption in the state, including bribery and corporate control of the power of government. In the state court’s view, this was more than enough to create a compelling justification in 1912, and today Montana remains “especially vulnerable to continued efforts of corporate control to the detriment of democracy.”
i) In other words, the Montana Supreme Court is saying that the facts matter. Even if the facts were not sufficiently established under federal law in Citizens United to show that corporate spending in campaigns is corrupting, facts showing undue influence have been amply demonstrated in the Montana case, which in the appeal to the U.S. Supreme Court is called American Tradition Partnership v. Bullock.http://www.scotusblog.com/?p=15362
j) Talk about the implications of the supreme court decision in the last election
a) Citizen United’s narrower arguments—that Hillary is not an “electioneering communication” covered by §441b because it is not “publicly distributed” under 11 CFR §100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Comm’n v. …show more content…
Wisconsin Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b uncon- stitutional as applied to speech that was not “express advocacy or its functional equivalent,” id., at 481 (opinion of ROBERTS, C. J.), deter- mining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” id., at 469–470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441b’s ban for nonprofit corporate political speech funded overwhelming by individuals—are not sustainable under a fair reading of the statute. Pp. 5–12.
b) Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b’s facial valid- ity. Any other course would prolong the substantial, nationwide chilling effect caused by §441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government’s litigating position; (2) substantial time would be required to clarify §441b’s application on the points raised by the Government’s position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating po- litical speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmen- tal agency for prior permission to speak. The restrictions thus func- tion as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amend- ment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 12–20.http://www.supremecourt.gov/opinions/09pdf/08-205.pdf
c) In early 2008, the case, known as Citizens United v. Federal Election Commission was brought to the United States District Court for the District of Columbia. This court sided with the Federal Election Commission (FEC) that Hillary: The Movie could not be shown on television right before the 2008 Democratic primaries under the McCain-Feingold Act.[3]
d) The Supreme Court docketed this case on August 18, 2008,[4] and heard oral arguments on March 24, 2009.[5][6][7] A decision was expected sometime in the early summer months of 2009.[8] However, on June 29, 2009, the Supreme Court issued an order directing the parties to re-argue the case on September 9 after issuing briefs on larger issues. The court ruled 5-4 in 2010 that spending limits in the McCain-Feingold act were unconstitutional, allowing essentially unlimited contributions by corporations and unions to political action committees. This was one of the most controversial rulings of the term. http://en.wikipedia.org/wiki/Hillary:_The_Movie
e) Under the federal Bipartisan Campaign Reform Act of 2002 (better known as McCain-Feingold after its chief sponsors, Senators John McCain of Arizona and Russ Feingold of Wisconsin), corporations and unions could make campaign expenditures through separate funds, called political action committees (PACs). Those PACs were limited in where they could get their funds and could not spend the money of the union or corporation itself. Under the 2002 law, the PACs could donate to candidates and could make independent expenditures to support candidates, but these were subject to limits, regulations, and disclosure requirements.
f) Citizens United dramatically altered that aspect of the campaign finance landscape.
The Court ruled that corporations and unions are entitled to the protection of the First Amendment for political speech and that restrictions on the ability of corporations to speak directly, rather than through separate PACs, are unconstitutional. Finding that the restrictions must survive strict scrutiny – that is, must be narrowly tailored to achieve a compelling interest – the Court rejected the Justice Department’s argument that the law was essential to prevent corruption in the political process. Writing for the majority, Justice Anthony Kennedy explained that “[t]he fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected
officials.”
g) Enter the Montana Supreme Court. Montana law is, in some ways, where federal law was before Citizens United. Originally passed by the voters of Montana in 1912, the state law now prohibits corporations from spending money to support or oppose candidates. But under Montana law, separate PACs can be created to contribute to candidates or to make independent expenditures; these PACs may be funded only by contributions from shareholders, employees, or members of a corporation.
h) The law was challenged by several corporations and associations. Deeming the case governed by Citizens United, the state trial court declared the Montana law unconstitutional. But the Montana Supreme Court took a different approach and upheld the law by a vote of five to two. When the law was passed, the Montana Supreme Court reasoned, there was abundant corruption in the state, including bribery and corporate control of the power of government. In the state court’s view, this was more than enough to create a compelling justification in 1912, and today Montana remains “especially vulnerable to continued efforts of corporate control to the detriment of democracy.”
i) In other words, the Montana Supreme Court is saying that the facts matter. Even if the facts were not sufficiently established under federal law in Citizens United to show that corporate spending in campaigns is corrupting, facts showing undue influence have been amply demonstrated in the Montana case, which in the appeal to the U.S. Supreme Court is called American Tradition Partnership v. Bullock.http://www.scotusblog.com/?p=15362
j) Talk about the implications of the supreme court decision in the last election