To campaign finance ‘reformers,’ we are a nation of lemmings

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Bert Gall
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      Bert Gall

      Bert Gall serves as a senior attorney at the Institute for Justice. Gall litigates free speech and property rights cases nationwide in both federal and state courts.

      Gall is currently co-counsel on behalf of SpeechNow.org, a group challenging federal campaign finance laws’ restrictions on free speech and the right of association. He was lead counsel in the Institute’s successful challenge to Florida’s “electioneering communications” law, which required groups and individuals to register with the state and comply with onerous regulations if they merely wanted to mention candidates or ballot issues in their publications. Bert also successfully defended a group of home and business owners in Clarksville, Tenn., who were sued by two developers (one a local politician) for criticizing the developers and their local government for abusing the power of eminent domain for private development. In the area of property rights, Bert served as co-counsel for home and business owners in Norwood v. Horney, the first eminent domain abuse case to be argued and decided by a state supreme court in the aftermath of the U.S. Supreme Court’s Kelo decision. In ruling for the property owners, the Court unanimously held that taking private property for private economic development violates the Ohio Constitution.

      Bert received his law degree from Duke University in 1999, where he served as an articles editor on the staff of Law and Contemporary Problems. He received his undergraduate degree from Rice University in 1996 where he majored in history and political science. Before coming to the Institute, he spent two years in private practice at a Helms Mulliss & Wicker in Charlotte, where he worked on a wide variety of commercial litigation cases. After law school, he clerked for Judge Karen Williams of the U.S. Court of Appeals for the Fourth Circuit.

      In 2009, Bert was recognized by The National Law Journal as one of its “Rising Stars: Washington’s 40 under 40,” which honored the top 40 lawyers under the age of 40 in the Washington, D.C. area.

American democracy is in peril.

So say campaign finance “reformers” as they lament today’s U.S. Supreme Court decision in Citizens United v. FEC. In that case, the court vindicated free-speech rights by holding that the First Amendment prevents the government from banning corporations from spending their money to express their views about candidates for office.

More broadly, the court’s ruling stands for the proposition that the government may not censor political speech, no matter who is doing the speaking: “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. This is unlawful.”

But, as soon as the decision came out, “reform” groups—without a trace of irony—exercised their right of free speech to declare that the end of the censorship of corporations’ speech is a terrible thing for the country. Fred Wertheimer, president of Democracy 21, which lobbies for strict restrictions on free speech, warns ominously that the decision “is a disaster for the American people.” Common Cause asserts that the decision has created a “political crisis.” On its Web page, Public Citizen proclaims, in huge red lettering, that “SUPREME COURT UNDOES DEMOCRACY.”

This hyperbole betrays a belief—common among proponents of restrictions on political speech—that Americans, like lemmings, are merely dull creatures who can be easily led off a cliff. Thus, unless the government “protects” us from hearing corporations’ speech about politics, we’ll always vote in ways that benefit corporations because they will spend lots of money to convince us to do so.

This conclusion is as ridiculous as it is patronizing. If corporations are capable of making the public do their bidding, then why isn’t everyone driving their Edsels to Circuit City to purchase Betamax video recorders?

The answer, of course, is that Americans are not imbeciles who mindlessly succumb to corporate advertising campaigns. We are fully capable of evaluating corporate speech on its merits; thus, we do not need “protection” from it.

When the Founders guaranteed to Americans the right of free speech, they knew that, for our democracy to survive, the people must be trusted to hear arguments about public issues and then make up their own minds. As the court emphatically made clear today, “The First Amendment confirms the freedom to think for ourselves.” The alternative—suppression of speech disfavored by the government—was the surest road back to the tyranny the Founders fought to escape.

The Founders’ crucial insight was that politicians, under the guise of acting in the public interest, will always attempt to censor effective political speech that could negatively impact their power and chances for re-election. Thus, it is them, not corporations or other speakers, from whom Americans need protection. Accordingly, the Founders, in language that could not be clearer, enshrined within the First Amendment the requirement that “Congress shall make no law… abridging the freedom of speech.”

By striking down federal restrictions on corporate speech in Citizens United, the Supreme Court has demonstrated that it understands the meaning and importance of this simple command. If this understanding continues to elude “reformers,” then perhaps it is not the public’s mental prowess they should be questioning.

Bert Gall is a senior attorney with the Institute for Justice, which filed a friend of the court brief in Citizens United and litigates nationwide against free speech restrictions. For more information, visit www.ij.org.

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  • richardhead

    Thats what just happened. The governments influence (that means yours) over corporations just went to zero. Corporate influence over government (that means you) just went stratospheric.

  • bladernr1001

    If want to decrease the influence of corporations or unions on government…..the only way that is going to get done is to reduce the influence that government has over these entities. Violating the first amendment was never a good way to blunt this mess we have put ourselves into.

  • ivanapuke

    As it turns out corporations are tired of congress calling them for contributions. Oh did I say contributions I meant free speech. Heres what some corporations are saying.
    “Members of Congress already spend too much time raising money from large contributors,” the business executives’ letter says. “And often, many of us individually are on the receiving end of solicitation phone calls from members of Congress. With additional money flowing into the system due to the court’s decision, the fundraising pressure on members of Congress will only increase.”
    Seems they are free to speak its just that nobody is listening.
    Heres the link to the source.

    This is for a petition these corporations advocate to curtail the problem.