ACRU

Ken Klowkowski: Justices Move Political Censorship Case

This column originally appeared on Human Events on July 3, 2009

Next year, the Supreme Court can throw open the doors for voters to learn the truth about those seeking power in America. Or not.

In an unusual move, the Court declined to decide a case on Americans’ right to speak out on candidates during presidential elections that was argued this year. Instead, they will rehear it this fall, focusing on a new legal issue in a case that will pit two legal heavyweights against each other.

The group Citizens United produced two documentary movies, one about Hillary Clinton and the other about Barack Obama. These were to be televised during the 2008 election, presenting footage and interviews about the candidates, the issues, and controversies.

The Federal Election Commission blocked the movies from being available on Video On Demand, saying that under the Bipartisan Campaign Reform Act (BCRA, better known as McCain-Feingold) it was a federal crime for a corporation to mention these candidates by name within 60 days of an election.

On March 24, the Supreme Court heard arguments in Citizens United v. FEC. The Obama Justice Department stunned the audience by arguing that the government has the power to ban all books, movies and even toy action figures that mention the names of federal candidates during BCRA’s “blackout” periods.

But on June 29, the Court surprised everyone by not deciding the case. Instead, the justices announced that they would rehear arguments in September. The Court directed both parties to submit briefs and prepare to argue whether the Court should overrule Austin v. Michigan Chamber of Commerce, which held that limits on corporations using corporate funds for political speech are constitutional.

The Obama administration will be represented by Solicitor General Elena Kagan, the brilliant former dean of Harvard Law School. But her opponent will be legendary former Solicitor General Ted Olson, the most capable and accomplished Supreme Court lawyer in at least a half-century. Both sides are putting forward their top guns in this battle of giants.

There are two important things that free speech supporters should know. First, this may be the first major free speech case weighed in on by President Obama’s Supreme Court pick. If Sonia Sotomayor is confirmed, she might be on the bench in time to hear it. (As an aside, if she’s not confirmed, it will likely be because of the growing controversy over her opposition to gun rights.)

Second, this case will focus on Chief Justice John Roberts as the swing vote, not Justice Anthony Kennedy. Then-Chief Justice William Rehnquist sided with the liberal majority in the Austin case. The late chief justice worked during a time when corporations were mostly massive for-profit businesses. He was concerned about how they could drown out the “little guy” in an era when campaigns were conducted chiefly through paid TV commercials and radio spots.

Chief Justice Roberts is Rehnquist’s successor, as chief justice and also philosophically. Additionally, Roberts is the most stringent adherent to stare decisis on the Court, which is the doctrine that precedent should be followed unless there is some special justification for overruling it. So he’s the one to watch on overturning the 1990 decision.

Justice Kennedy made clear in the Austin case where he stands on this issue. In his dissent, Kennedy called it “the rawest form of censorship” to limit, “what a particular segment of the political community might say with regard to candidates who stand for election.”

The organization Citizens United is a perfect example of a corporation that was formed to advance political ideas, not as a profit-focused business. Justice Kennedy flatly declared that such an organization “engaged in political discussions of candidates and elections has the full protection of the First Amendment.”

The American people have the right to know all the facts and hear both sides about candidates for office. The Founding Fathers wanted voters to be informed so they could cast their vote after careful consideration and due diligence. That’s true for every candidate seeking elected office.

But it’s all the more important for candidates seeking the White House. Since we can’t depend on the media, we need organizations like Citizens United to report the truth.

Next year, the Supreme Court will have a chance to make that possible.