In the name of free speech, the Supreme Court in 2010 allowed corporate money to come pouring into federal elections. Now, a group of consumer advocates hopes the nation’s highest court will weigh in on another First Amendment case that could deliver a stinging rebuke to some of the nation’s most unpopular corporate citizens: big banks.
For three decades many states have enforced laws that prohibit retailers from imposing a surcharge on purchases with credit cards, even though they allowed merchants to advertise a discount if customers pay cash. The rule, which seems at first glance a distinction without a difference, helped drive the adoption of credit cards, which require retailers to pay larger fees to banks than debit cards, or cash.
So, a group of retailers including a Brooklyn ice cream parlor and a hair salon near Binghamton, New York, ginned up a lawsuit in 2013 arguing that a such laws violate their First Amendment rights to advertise whatever prices they chose. They won, and eventually brought similar lawsuits in Florida, Texas and California.
The litigation resulted in a series of victories and defeats in district courts and on appeal, giving retailers their first opportunity since the laws came about a generation ago to take their case to the highest court in the land.
“It’s a great candidate for Supreme Court review,” said Deepak Gupta, one of the lead attorneys on the case. “It’s a national problem that needs a national answer.”
The cases illustrate the many uses of the First Amendment when it comes to corporate speech, but they also constitute a rare example of a free speech case in which the main target is not so much government as it is another set of companies. Citizens United, the landmark 2010 Supreme Court case that struck down many restrictions on election spending as violations of free speech, dealt with government barriers to political participation.
In this instance, the state laws have more to do with disputes among companies, a long-running dispute between banks and retailers, and the importance of free speech in a free enterprise system.
“Sometimes you have to let corporations speak freely in the marketplace for consumers to have the right, useful information,” Gupta said.
Though most consumers are unaware, retailers from Walmart to Home Depot to the smallest corner dry cleaner pay so-called swipe fees — named after the ubiquitous point-of-sale terminal — to banks, which issue the credit cards that run on networks operated by Visa and MasterCard, among others. The fees ran up to $40 billion annually in the past few years, and are higher for credit than debit. That higher cost provides retailers a strong incentive to get customers to use debit cards or cash.
Attempts to litigate or regulate swipe fees downward, or out of existence, have been a regular occurrence for decades. Most recently, retailers persuaded Congress to cap debit card swipe fees as part of the 2010 law that overhauled regulation in the wake of the global financial crisis. The move earned Sen. Richard Durbin, the Illinois Democrat who sponsored the legislation, the eternal enmity of the country’s largest banks.
In the late 1970s and early 1980s, banks and card networks sought and obtained state laws that prevented merchants from charging higher prices if customers used credit, though the rules included some notable exceptions, such as for gas stations.
“The priority was hiding the cost of using credit cards,” said Ed Mierzwinski, the director of the consumer program at U.S. Public Interest Research Group, an advocacy group. “They did not want merchants to give consumers a signal to the effect of, ‘Hey we’d rather you used a different form of payment.’”
Madeline Aufseeser, chief executive of Tender Armor, a payments technology company based in Fort Lauderdale, Fla., said surcharging has a greater danger to the likes of American Express and other companies: bad press. “Potentially, consumers might shy away from credit, and it could hurt the reputations of credit cards,” Aufseeser said.
The laws allow stores to sell at a discount for cash or debit. Merchants are barred from selling a $100 toaster oven for $102 to credit card users, for example, but can sell it to customers using cash or debit for $98.
The distinction is crucial. Ample evidence from behavioral economics, a field that mixes psychology with more traditional empirical research, demonstrates that consumers are more likely to react to a penalty than an incentive — that they are more intent on avoiding a higher price than achieving a lower one, even though the result is the same. So, by barring surcharges, states deprive store owners of a tool for persuading customers to use debit cards or cash, which cost retailers less than credit cards.
It’s a state of affairs that outrages advocacy groups, and a federal court in Florida, which struck down as unconstitutional a law that threatens any merchant that surcharges with jail time.
“The First Amendment prevents staking citizens’ liberty on such distinctions in search of a difference,” the court wrote last week. “Florida’s no-surcharge law directly targets speech to indirectly affect commercial behavior.”
U.S. Judge Jed Rakoff, in his decision striking down the New York law, said that “Alice in Wonderland has nothing” on the state’s “incomprehensible” rules that ban surcharges but allow discounts. An appeals court subsequently reversed Rakoff’s decision.
But by then, lawsuits were filed in Florida, and California, where the law was also struck down. Nine other states — California, Colorado, Connecticut, Kansas, Maine, Maine, New York, Oklahoma, and Texas — have laws similar to Florida’s.
Banks and credit card companies have lurked on the sidelines as the cases in Florida, California, Texas and New York — the four largest states in the nation by population — have unfolded. Boies Schiller & Flexner, a powerhouse legal firm representing American Express, has sent lawyers to quietly observe the proceedings as they’ve unfolded, Gupta said.
Aufseeser argued that surcharging would ultimately come back to hurt consumers because retailers will not simply pass the costs they bear on to consumers, but will add a little extra themselves. “I have never seen a merchant do it properly,” she said.
The Electronic Payments Coalition, a group that has fought hard against anything that would limit bank fees on credit cards, has also kept a low profile, taking no position on the lawsuits that would do just that. “Our interest has always been to ensure that any checkout fees assessed by retailers are transparent and that consumers are protected,” said Sam Fabens, a spokesman for the group.
