Welcome to the National Campaign to Restore Civil Rights Interview series, a regular examination of the court cases that shape and affect our lives.
During the 2008 election season, a right-wing organization called Citizens United attempted to run TV commercials for its film 'Hillary: The Movie', depicting then-presidential candidate Hillary Clinton in a less than savory light. Barred from releasing the ads due to campaign laws, Citizens United argued that the film was factual and non-partisan. A district court in Washington, DC ruled that the film was meant to discredit Clinton and that the commercials were in violation of the McCain-Feingold Act - curbing "electioneering communications" for 30 days before primary elections. On September 9th, the Supreme Court heard re-arguments on the case Citizens United v. Federal Election Commission.
To get a better sense of this case's meaning for the future of civil rights, we spoke with legal scholar Erwin Chemerinsky, dean of the School of Law at the University of California at Irvine.
PERRY: What is the Citizens United vs. Federal Election Commission case about?
CHEMERINSKY: The narrow issue before the Supreme Court is whether a political action corporation had the right to show a movie highly critical of Hillary Clinton during the 2008 presidential primaries. There’s a provision of the McCain- Feingold Bipartisan Campaign Finance Reform Act that says that corporations and unions cannot engage in broadcast ads that are for or against an identifiable candidate 30 days before a primary or 60 days before a general election. The narrow question before the Court is whether or not this provision applies to prohibit a particular corporation from showing the movie critical of Hilary Clinton. The Supreme Court heard briefing and arguments about that last year, but then the Supreme Court asked for additional briefing over the summer, and oral arguments on September 9th, on the question of whether or not corporations have First Amendment rights to spend money in election campaigns. That’s a much broader question, and obviously one with far greater implications for elections in the United States.
PERRY: What does corporate spending have to do with free speech?
CHEMERINSKY: In 1976 in Buckley v. Valeo, the Supreme Court said that spending money in election campaigns is core political speech under the First Amendment. Subsequently, in First National Bank Boston v. Bellotti, the Supreme Court said that corporations have a First Amendment right to freedom of speech. The question then becomes, does this mean that corporations have a First Amendment right to spend money in election campaigns? The Supreme Court so far, in prior cases, has upheld the ability of the government to limit corporate spending in election campaigns. In Austin v. Michigan Chamber of Commerce in 1990 the Court did this, in McConnell v. Federal Election Commission in 2002, and in upholding McCain-Feingold the Court did this. But now many believe that the Supreme Court is going to overrule these decisions. They’ve asked for briefing on whether they should be overruled, and the Court is going to say that corporations have a First Amendment right to spend money on election campaigns.
PERRY: If the Supreme Court rules in favor of the plaintiff, what impact will the ruling have on the American political landscape?
CHEMERINSKY: I think it will have an enormous impact. Obviously how much of an impact is going to depend on how the Court writes the opinion. The Court could decide this case very narrowly. They could just interpret this provision of the law in the McCain-Feingold Act to not apply to this corporation and its movie. In that case it’ll be minimal impact. But I think the conventional wisdom, especially after the oral argument on September 9th, is the Supreme Court is going to say that corporations have a First Amendment right to spend money in election campaigns. That’s going to mean that the tremendous wealth of corporations can be used to elect or defeat specific candidates. I think it’s likely, but not probably in this case, that the Supreme Court is going to say that corporations have the First Amendment right to contribute money to candidates for elected office. In 1907 Congress passed a statue that prohibited corporations from giving money to candidates for federal elected office. I think there's probably five votes on the Court to declare that unconstitutional. And I think in the future, I don’t know if it’s going to be this case, the courts going to say that all contribution limits, other than disclosure requirements, in elections violate the First Amendment. I think to gather these rulings, starting with what’s likely to happen in this case, will dramatically change the nature of all elections.
PERRY: How might a ruling that contributions can’t be restricted effect elections and the right to vote?
CHEMERINSKY: If the Supreme Court were to hold that contributions can’t be restricted then there will be the ability of wealthy corporations, wealthy individuals, to donate enormous amounts of money to get their candidates of choice elected. I think the Supreme Court was right in what it said in Buckley v. Valeo, that large contributions inherently risk corruption and the appearance of corruption. And I think that’s very much what we’re going to see in the future, if even mega-corporations can spend tremendous amounts of money to change the outcome of elections.
PERRY: How will this case serve to educate the American public about the importance of the courts?
CHEMERINSKY: The reality is what the Court decides is going to determine the nature of elections in the United States. If the Supreme Court holds this expected, that corporations can spend as much as they want in election campaigns, it’s going to change the very nature of elections. People will see that what the Supreme Court says about the elections really matters in determining who gets elected into government office.
PERRY: Great, thank you very much for speaking with us today.
CHEMERINSKY: My pleasure.
That was Dean Erwin Chemerinsky from the School of Law at UC Irvine.
The National Campaign to Restore Civil Rights is a collection of more than 100 civil rights organizations and numerous individuals who came together to ensure the courts protect and ensure justice, fairness and opportunity for everyone. The campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities and our rights.