“Enough is enough.” That’s how Chief Justice John Roberts put it back in 2007 in a case in which the Supreme Court was engaged in hair splitting and fine line drawing regarding what types of speech it was that the First Amendment would allow corporations or unions to be barred from engaging in under the Bipartisan Campaign Reform Act (“BCRA”). Although the Court did not reverse its earlier precedents at that time – and throw out part of the BCRA along with them – Chief Justice Robert’s exasperation at the Court’s, the FEC’s, Members’ of Congress’, and the parties’ efforts to dance more and more angels on the head of a pin when identifying what speech was permitted and what wasn’t, was the first step in that direction.

What was the source of the Chief’s exasperation? Well, in order to understand that we have to lay out some background. So stay close and follow along with me if you will. Let’s start with the statutes and regulations. Before the BCRA federal law prohibited corporations and unions from using their general treasury funds to make either direct contributions to candidates or independent expenditures that expressly advocated the election or defeat of a candidate through any form of media in connection with certain federal elections. This was the law before the BCRA, and it remains the law now under the BCRA even after the recent Citizens United decision.

The BCRA amended the then existing law to also prohibit corporations and unions from engaging in “electioneering communication.” What the heck is that, you ask? Well, buckle up, you’re about to get a feel for the underpinning of the Chief’s exasperation. An electioneering communication was defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election.

The FEC’s regulations specified that to constitute “electioneering” the communication had to be “publicly distributed, which for a Presidential election meant it could be received by 50,000 or more persons in a state where a primary election is being held within 30 days. Thus, a corporation or union was prohibited from engaging in both express advocacy (“vote Nobama”) and electioneering communication (“look at these charts that show how the national debt has quazuppled since January 2009 when President Obama took office”).

Corporations and unions could, however form a “separate segregated fund” known as a “political action committee” or “PAC” to engage in either express advocacy or electioneering communication. These PACs could only receive funds from stockholders or employees of the corporations, or members of the unions. There were lots of rules and requirements for maintaining and operating these PACs, but they essentially served to enable the large and well organized corporations and unions to expend lots of money on advocacy and electioneering at and around federal election time. Okay, got all that?

Now lets talk Court decisions. In 1976 the Supreme Court considered the constitutionality of various political contribution and expenditure limitations in a case called Buckley v. Valeo. Buckley is the case in which the Court recognized that contributing money to, and spending money on behalf of, political candidates implicates core First Amendment protections. The Court held that restrictions on such contributions and expenditures “operate in an area of the most fundamental First Amendment activities.”

But, the Court held that the limitations on direct contributions and express advocacy could nonetheless stand because government has a compelling interest in “prevention of corruption and the appearance of corruption” in federal elections. The corruption that the Court was referring to was the “quid pro quo” variety, whereby an individual or entity makes contributions or expenditures in exchange for some action by the official. Sadly, we know a thing or two more about that here in Alaska than we might care to admit to family in the lower 48.

The Court in Buckley struck down the limitations on how much money corporations and unions could spend on independent expenditures (expenditures made to express one’s own positions and not in coordination with a campaign). When striking down the independent expenditure limitation the Court explained that communications that used certain magic words (“vote for”, “elect”, “support”, “cast your ballot for”, “Smith for Congress”, “vote against”, “defeat” or “reject”) represented “express advocacy” rather than “independent expenditures”.

Two years later in 1978 in a case called Bank of Boston v. Bellotti the Court struck down a Massachusetts statute that prohibited corporations form spending money in connection with a referendum unless the referendum materially affected the corporation’s property, business, or assets. In holding that this law violated the Free Speech Clause the Court made it clear that corporations have First Amendment free speech protections. The Court said that the principle that political advocacy is “at the heart of the First Amendment’s protection” and is “indispensable to decision making in a democracy” is “no less true because the speech comes from a corporation rather than an individual.”

The Court specifically rejected the idea that corporate participation could constitutionally be prohibited because they “would exert an undue influence on the outcome of a referendum vote” and “drown out other points of view” and “destroy the confidence of the people in the democratic process.” This was not a novel idea – the Court had repeatedly recognized that corporations possessed constitutional rights, including speech rights in a number of cases dating back to 1936.

But, then the Court did something out of step – in 1990 in a case called Austin v. Michigan Chamber of Commerce, the Court said that the First Amendment permitted government to restrict political speech based on the corporate identity of the speaker. The Court upheld state restrictions on corporate independent expenditures in support of, or in opposition to, any candidate in elections for state office. Yeah, although dealing with technically different situations (express advocacy in Bellotti and issue advocacy in Austin), Bellotti and Austin were pretty much inconsistent. In Austin the notion that corporate participation would distort the political process was accepted whereas it had been rejected in Bellotti. But, because the cases involved different forms of advocacy, nonexpress advocacy (independent expenditures) were presumed to remain protected even when engaged in by corporations.

Then, in 2003 in a case called McConnell v. FEC the Court extended the breadth of the corporate political speech that the First Amendment would permit to be banned so as to include forms of nonexpress advocacy, the “electioneering communications” we talked about earlier. The Court said that corporate electioneering communications could be banned “in light of the availability of the PAC option.” But, the Court limited the ban to speech that either was express advocacy or its functional equivalent.

It was thereafter in the next case in 2007 that the Chief Justice expressed his exasperation as the Court grappled with how to split hairs and draw lines so as to define what was and was not the functional equivalent of express advocacy. Under the prevailing law at the time, while larger corporations were able to devote time and resources to creating, funding, maintaining, and operating PACs, meeting the accounting, filing and reporting requirements, smaller grassroots non-profits by contrast struggled to find a voice in the marketplace of political speech.

It was in the setting of this law and this history, that the Supreme Court decided Citizens United. What the Court took on to consider and decide in that case was whether it is permissible under the Free Speech Clause to prohibit unions and corporations (both for-profit and non-profit) from engaging in “electioneering communications”. The problem that had arisen under the current state of the law was that corporate speakers could never know for sure if their speech would be viewed by the FEC as being permissible or not – the solution? – corporate speakers would be forced to seek permission from the FEC before speaking, and the FEC would then act as censor approving some speech and disapproving other speech. Absent FEC pre-approval the corporate speaker would only have the choice to either go to court or stay silent.

In the circumstances preceding Citizens United, censorship and the chilling of protected core political speech, both constitutionally unacceptable, were thriving. Something very clearly needed to change because the situation was not compatible with the fundamental purposes of the First Amendment Free Speech Clause.

As former Solicitor General Ted Olson eloquently put it, “[w]hen the government of the United States of America claims the authority to ban books because of their political speech, something has gone terribly wrong and it is as sure a sign as any that a return to first principles is in order.” The Court’s decision in Citizens United is a solid First Amendment decision that correctly returns the Nation to its “first principles” by extending constitutional protection to core political speech regardless of who the speaker might be or how much money the speaker might have to publish and broadcast the speech.

The Court’s earlier anti-distortion rational for allowing corporate political speech to be suppressed – the idea that suppressing the speech of some speakers was acceptable in order to diminish their impact on the marketplace of ideas – was antithetical to the First Amendment. The government does not have any legitimate interest let alone a compelling one in policing the marketplace of ideas for signs of “distortion,” equalizing the relative voice of participants in political discourse, or preventing corporations (or anyone else for that matter) from influencing the outcome of elections through speech. Think about who it was at the founding of our Constitution that had the ability to mass broadcast their speech (to the degree that mass broadcasting was possible through the press and publication) -- it was only those individuals or collections of individuals who through personal wealth and/or reputation could either publish and distribute their own words, or garner the attention of newspapers to do so for them.

Consistent with this view, the Court in Buckley had earlier dismissed out of hand the government’s asserted interest “in equalizing the relative ability of individuals and groups to influence the outcome of elections.” The “concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others,” is downright un-American and “is wholly foreign to the First Amendment.”

The notion that corporations did not have Free Speech rights could not be supported by either the text or the history of the First Amendment, and as shown above it was inconsistent with the Court’s earlier decisions. “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Unlike other provisions in the Bill of Rights and the Fourteenth Amendment, which specifically tie their application to “the people” or “person[s]” or “the accused” etc., the focus of the Free Speech Clause is “speech” not the individual “speaker.” It is “speech” that is not to be abridged, not certain types of “speakers.”

As Justice Scalia correctly pointed out in his concurring opinion, the Amendment’s “text offers no foothold for excluding any category of speaker” – corporation, association, or otherwise. We should trust that the Founders knew what they were doing when they did not write the Amendment to say “freedom of speech” “except for associations of persons in corporations, etc.”

There is ample evidence that the Founders believed that the Free Speech Clause protected the right of individuals to speak collectively in other legal entities that, as Justice Scalia explains “have more in common with modern business corporations that the founding-era corporations” – “religious, educational, and literary corporations were all incorporated at the time under general incorporation statutes, much as business corporations are today.” And, what of colleges, towns and cities, religious institutions, and guilds. To accept the idea that the First Amendment does not protect collective groupings of individuals in corporations would lead to the incongruous conclusion that “all of these [were] silently excluded from the protections of the First Amendment.”

And, that is not even to mention corporations that own newspapers – as Justice Scalia puts it, the notion that the First Amendment would allow the suppression of the press just because they are organized in corporate form “boggles the mind.” Even Justice Stevens and his dissenting colleagues recognized that history reflects that the Founders believed that the freedom of the press always covered corporations from the outset. From a textual and historical standpoint there is no reasonable basis for concluding that “Congress shall make no law . . . abridging the freedom of speech, or of the press” means that groupings of individuals into corporations are protected under the Free Press provision, but not under the Free Speech provision.

As the Court stated, “[t]here is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. . . . Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the colonies. . . . The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era—newspapers. . . . The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.”

Let's be real here – under the old rule of law before Citizens United was decided, the only people who had their speech suppressed were those folks who were associated with smaller less well funded non or for-profit corporations, some formed as grass-roots organizations for the purpose of issue advocacy, that did not have the man-power or financial where-with-all to form, fund, manage and maintain a PAC – or who did not own or work for a newspaper or media outlet.

All that Citizens United did was open the door to free speech – my word, when has any American ever been afraid of or opposed to free speech? We watch the news of the sham elections in Iran where people take to the streets in the hope of having their voices heard and then are jailed, beaten and killed and we are appalled and disgusted at such tyranny. Why? Because we are Americans, and free speech is as much or more a part of who we are as Old Glory, apple pie, and baseball.

I trust that the vast majority of our electorate can and will sift the wheat from the chaff when it comes to evaluating political speech. I say bring it on – I know how to turn those corporations off and tune them out if they don’t have a legitimate message. They won’t win my mind just because they pour buckets of money into their ads. And, I really do like the idea that the doors of the marketplace of ideas have been opened to the smaller less sophisticated organizations.

Free speech is a great thing.