Talk Radio News Service

In what Justice John Paul Stevens called a “radical departure” from earlier law, the Supreme Court today ruled that any campaign finance regulation that treats corporations differently from individual citizens is unconstitutional.
The decision came in the case of Citizens United v. Federal Election Commission (FEC), in which a private corporation tried to produce and broadcast a “documentary” critical of then-Senator Hillary Clinton during the 2008 presidential primary. Under the 2002 Bipartisan Campaign Reform Act—also known as McCain-Feingold—any broadcast of the documentary, because it was funded by a corporation, would be illegal within 30 days of the primary.
Justice Kennedy, writing for himself and four other Justices, called the regulation a “ban on political speech,” and said that the government “ban[s] political speech simply because the speaker is an association that has taken on the corporate form.” He rejected arguments that had been accepted in Supreme Court precedents that corporations could be regulated more tightly because they had special legal advantages, “such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.” Kennedy quoted Justice Antonin Scalia’s dissent from an earlier case, writing that “the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.”
“The First Amendment confirms the freedom to think for ourselves,” Kennedy wrote, adding that “when Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.”
Justice Stevens wrote a lengthy dissent, harshly attacking the bases of the Court’s opinion. He pointed out that the law was not an outright ban, as Citizens United could have used PAC funding, aired the ad earlier, or refused contributions from for-profit corporations. He also noted that the Supreme Court has previously upheld speech restrictions on other groups based on their identities, such as students, prisoners, and members of the armed forces. The majority’s logic, Stevens wrote, “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”
Justice Stevens also criticized the majority for producing a broader decision than was necessary. Citizens United had only asked for a special waiver for its documentary, but the majority chose to take the opportunity to strike down the entire law.
The Court did choose to uphold a provision of the law that required some disclosures when corporations make expenditures. Under the law, campaign ads not made by a candidate must reveal the name of the group that funded it, and any person or corporation that spends more than $10,000 in a single year on campaign ads must make a filing with the FEC listing any individuals who contributed more than $1,000.
This disclosure provision was upheld by eight Justices, with only Justice Clarence Thomas dissenting. Justice Thomas cited a right to anonymous speech and expressed concern about retaliation against individual donors, referring to harassment and property damage exacted upon supporters of California’s Proposition 8.

When Jose Padilla was arrested in Kentucky in 2001 for drug trafficking, his lawyer advised him to plead guilty in exchange for a shorter sentence. Padilla is a legal permanent resident, having immigrated from Honduras 40 years ago, and his lawyer advised Padilla that the guilty plea would not affect his immigration status. Padilla pleaded guilty in October 2002 and was sentenced to 5 years in prison and 5 years of probation.
The lawyer’s advice, unfortunately, was wrong. Drug trafficking is an “aggravated felony,” meaning Padilla lost any benefit of his immigration status and would have no defense should the government choose to deport him. In 2004, Padilla filed a motion in court in Kentucky asking to withdraw his guilty plea, arguing that he would not have plead guilty if he had known about the immigration consequences.
The general rule for legal advice at trial is that a lawyer must fully inform a client of the direct consequences of a guilty plea, such as jail time, but the lawyer has no duty to explain “collateral consequences” like losing the right to vote or own firearms. The Supreme Court Tuesday heard arguments that loss of immigration status is such an important issue—and was so important to Padilla’s decision to make the plea—that a lawyer’s incorrect advice warrants overturning the conviction and possibly bringing a new trial.
The Supreme Court Justices seemed to primarily be concerned that if Padilla is allowed to take back his plea it would expand the job of a court-appointed attorney to include giving all sorts of legal advice rather than letting them focus on getting a favorable verdict in the specific case for which they are assigned. Justices Antonin Scalia and Samuel Alito asked the attorneys several times whether incorrect advice on child custody and confiscation of property could lead to new trials. Padilla’s lawyer argued that, if that advice was key to the defendant’s decision to plead guilty, it could be grounds for a new trial. He further pointed out that a lawyer is always free to say that he simply does not know or refuse to answer entirely.
The lawyer for Kentucky, at one point comparing the collateral issues to land mines, nevertheless argued that the Sixth Amendment, which provides the right to an attorney at trial, only provided that attorney for the purpose of countering the government’s prosecution. In other words, anything the lawyer says about collateral consequences is outside of his mandated role under the Sixth Amendment and is therefore not grounds for reversal.
The Supreme Court will hand down its decision in the case later this year.

In 2003, Michael Shatzer Sr. was serving a sentence at the Maryland Correctional Institution for sexually abusing a minor. When police asked him if he had ever sexually abused his son, Shatzer refused to answer and said he wanted to speak with a lawyer. In 2006, investigators returned, and Shatzer incriminated himself. In court, Shatzer’s attorney asked that the comments be stricken from the record on the grounds that police can not reopen questioning after a suspect requests counsel.
Today the Supreme Court took up the question of whether police can approach a suspect after he requests a lawyer. The 1981 Supreme Court precedent on police questioning holds that law enforcement officials are not allowed to badger a suspect into confessing by repeatedly asking if he wants to talk. The twist in the Shatzer case is that there was a two-and-a-half year delay from when police first questioned him to when he was later approached by investigators at a separate detention facility.
The bright-line rule established by the 1981 ruling is easily enforced: if there’s no lawyer, and if the suspect has not voluntarily said he wants to speak without a lawyer, and if the suspect has not been allowed to go home, the police cannot approach him to ask him about any crime. The rule is there to prevent suspects from incriminating themselves and to prevent police from badgering them into confessing.
Justice Antonin Scalia took issue with the argument made by Shatzer’s lawyer that coming back after two and a half years is “badgering,” and the lawyer seemed to admit that “badgering” isn’t the right term. Still, the lawyer argued, the police should not be allowed to approach the suspect, since any standard that allowed the police to approach after a certain amount of time would be hard to enforce. On the other hand, other justices pointed out that it would be hard for police to determine whether a suspect has ever before asked for a lawyer, even during questioning years earlier, before asking questions.
Justice Anthony Kennedy, who will likely be the swing voter in the case, seemed concerned with the police’s argument that Shatzer’s “release” back into the prison population after his interrogation in 2003 eliminates the possibility of coercion by police. Justice Kennedy suggested that the prison warden could, for example, put some pressure on the suspect by putting him in a better or worse cell to encourage him to talk to police.
The Supreme Court will release its decision on the case later this year.