After the Supreme Court decided against his favored position in 1832, Andrew Jackson supposedly explained, “John Marshall has made his decision; now let him enforce it!” The idea was that the judiciary had the power to make pronouncements, but only the executive branch had the power to carry them out.
This March, the Federal Elections Commission under President Obama began channeling Jackson. We had hints that this would happen after the Supreme Court decided in Citizens United v. FEC that restrictions on corporate funding of independent political broadcasts were prohibited by the First Amendment; that ruling also held that nonprofit groups like Citizens United could freely produce and distribute their documentaries.
Obama quickly responded by targeting the Supreme Court itself, boldly (and wrongly) proclaiming in his State of the Union Address, “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” Members of the Supreme Court were sitting directly in front of him at the time (one, Justice Samuel Alito, had the unmitigated temerity to shake his head softly when Obama lied about the ruling).
Obama’s FEC is following in his footsteps. Citizens United itself is a 501(c)4 nonprofit advocacy group that produces political films. It was the government’s attempt to treat their documentary, Hillary: The Movie as a political campaign expenditure that led to the ruling in Citizens United.
In March, Citizens United asked the FEC for an advisory opinion on whether the production, distribution and marketing of its future films would be regulated by the FEC in violation of the Citizens United decision. The FEC wrote back with two proposed opinions. The first was fine. It suggested that “the costs of producing and distributing Citizens United’s films, along with related marketing activities, are covered by the press exemption from the Act’s definitions of ‘expenditure’ and ‘electioneering communication.’” They based their logic on a two-step process. First, they determined that Citizens United was a “press entity” because “Since 2004, Citizens United has produced and distributed fourteen films, with four additional films currently in production.” Second, they determined that Citizens Untied was not owned or controlled by a political party, political committee, or candidate, and that it was distributing its work to the general public in accordance with prior procedures. Fair enough.
The second draft opinion and its alternative argument was far more troubling. In it, the FEC suggested that while Citizens United’s production, distribution and marketing costs would be exempt from regulation under the Federal Election Campaign Act of 1971 (as amended) if they were related to movies broadcast on television, they would “not be covered by the press exemption to the extent the films are distributed by theatrical release and as DVDs.” The logic here is peculiar. The FEC said that “under the Act and the Commission’s regulations, unless a press entity’s facilities are owned or controlled by a political party [etc.] … the costs of distributing any news story, commentary, or editorial distributed through the enumerated media are neither expenditures nor electioneering communications.” Here’s where the FEC gets dicey, though: they wrote, “Conversely, a news story, commentary, or editorial distributed through facilities other than the enumerated media is generally not covered by the press exemption.”
In other words, if you are a press entity but you don’t use approved press “facilities” to distribute your product, you can be regulated. What are approved press “facilities”? Means of distribution that have been used previously the Citizens United for its documentaries. This leads to the odd result that while the “distribution of documentary films through the facilities of a broadcast, cable, or satellite television station is the legitimate press function of an entity,” the same does not hold true for DVD and theatrical distribution.
Tomorrow, the FEC will vote on whether to adopt the first or second version of their advisory opinion.
The second opinion is a clear slap in the face to the Supreme Court. While the Supreme Court did not touch on this issue specifically, the main thrust of Citizens United obviously cuts against this type of regulation. Citizens United was designed to avoid creating false distinctions between press and other corporations, because such distinctions would inevitably end in violation of freedom of the press itself. Now the FEC is attempting to paint such distinctions once again through the “facilities” language of the Act. This is just part of a broader attempt to end-run the Citizens United decision. It will likely end up at the Supreme Court level again, and again the Supreme Court will strike down such administrative fiat. And the cycle will continue, until we get a Congress that repeals the Act wholesale.
