This article was written by the Carleson Center for Public Policy Policy Board Member and retired president of the Ethan Allen Institute John McClaughry.
President Obama’s remark that he believes that Congress should “seriously consider” a constitutional amendment to overturn the Supreme Court decision in Citizens United vs. FEC will doubtless spur ever more fanatic efforts by inaptly-named “liberals” to do just that.
First, let’s understand the issue.
In 1907 Congress prohibited corporations from contributing to the campaigns of candidates for Federal office. But the subject of Citizens United was whether a 2002 act of Congress could declare a nonprofit advocacy corporation’s airing of a film critical of a candidate (Hillary Clinton) within 30 days of a primary or 60 days of a general election to be a felony.
The 2002 law, called BCRA, made it a felony for any corporation, labor union, or citizen’s association to make independent expenditures to influence public opinion in the run-up to elections.
A typical independent expenditure is a newspaper ad saying “Congressman Smith’s No vote on the widget bill will hurt workers and families”. The message cannot be coordinated with Congressman Smith’s opponent or any political party, and it cannot say “So let’s vote Congressman Smith out of office.”
BCRA applied not only to business corporations, but also to nonprofit corporations such as the National Rifle Association, VPIRG, National Right to Life, and the Sierra Club, and to labor unions. The act exempted media corporations, thus allowing, for example, the New York Times Corporation to publish with impunity millions of editorials advocating the election of Barack Obama.
Defending the act, the Obama Justice Department argued that to prevent “the appearance of corruption”, the government could prohibit and punish not only radio and TV broadcasts, but pamphlets, posters and the internet that corporations and unions might find useful in expressing their views on matters of public concern.
In a 5-4 decision the Court struck down the offending section of BCRA, holding that Congress may not suppress political speech based on the speaker’s corporate identity.
The Left went berserk. Sen. Bernie Sanders (I-VT) has placed himself at the head of a national movement for his “Saving American Democracy Amendment” (SJRes 33). There are three House resolutions toward the same goal. Tellingly, their proposed amendments denounce the baneful influence of non-human “corporations”, but their actual text exempts favored nonprofit corporations, political action committees, labor unions, and media corporations. This calls into question whether their indignation is directed toward corporations as such, or just toward for-profit corporations that might object to the Left’s penchant for more taxes, deficit spending, and regulations.
One liberal organization has, to its credit, placed fidelity to the First Amendment ahead of the interests of the liberal groups with which it is often allied. In a March 2012 position paper, the American Civil Liberties Union stated:
“Some argue that campaign finance laws can be surgically drafted to protect legitimate political speech while restricting speech that leads to undue influence by wealthy special interests. Experience over the last 40 years has taught us that money always finds an outlet, and the endless search for loopholes simply creates the next target for new regulation. ..”
“Any rule that requires the government to determine what political speech is legitimate and how much political speech is appropriate is difficult to reconcile with the First Amendment. Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them.”
“The ACLU does not support campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech… Unfortunately, legitimate concern over the influence of “big money” in politics has led some to propose a constitutional amendment to reverse the [Citizens United] decision. The ACLU will firmly oppose any constitutional amendment that would limit the free speech clause of the First Amendment.”
Kudos to the ACLU! Today’s misnamed “liberals” are all too often willing to invoke government power to suppress speech that threatens their political interests. The First Amendment, fortunately, still stands in their way, at least until a “liberal” president succeeds in appointing a “liberal” majority on the Court.