"When the government of the United States of America claims the authority to ban books because of their political speech," says Citizens United, " something has gone terribly wrong." A majority of the U.S. Supreme Court seems to agree.
Next week, for the second time, the court will hear oral arguments in Citizens United v. FEC, a case that poses the question of whether the Federal Election Commission violated the First Amendment when it prevented the conservative group from showing a highly critical documentary about Hillary Clinton on cable TV during the 2008 primary season. The court scheduled the unusual second round of arguments after it heard the lengths to which the federal government had been driven in defending its suppression of "Hillary: The Movie."
Among other things, Deputy Solicitor General Malcolm Stewart claimed last March that nothing in the Constitution prevents Congress from extending its ban on "electioneering communications" -- the FEC's justification for blocking the anti-Clinton film -- to print or the Internet. This time around, the Supreme Court will consider whether the ban should be scrapped altogether, along with its dubious constitutional rationale: the notion that the government has a legitimate interest in regulating the marketplace of ideas to prevent some speakers from gaining an unfair advantage over others.
The Bipartisan Campaign Reform Act of 2002 prohibited labor unions and corporations, including nonprofit interest groups, from airing TV or radio messages that mention a candidate for federal office close to an election. Although the Supreme Court later narrowed the definition of forbidden messages, the experience of Citizens United shows that activists still must beg the FEC's permission to speak or risk fines and imprisonment.
When it upheld the ban on electioneering communications in 2003, the Court relied on a 1990 decision in which it had approved Michigan's ban on independent campaign expenditures by corporations. The 1990 ruling said such laws are a legitimate attempt to "counterbalance" the "corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas."
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