In the week since the Supreme Court’s landmark decision in my case, Citizens United v. Federal Election Commission, there has been a significant amount of hyperbole flying around the liberal blogosphere fueled by the likes of Keith Olbermann (“a decision that might actually have more dire implications than Dred Scott”), Sen. Chuck Schumer (“The Supreme Court has just pre-determined the winners of next November’s elections”), and President Obama (“It is a major victory for big oil, Wall Street banks, health insurance companies”). While the facts of the case have been distorted in myriad ways, there are two distortions in particular that are so egregious for such learned men that they deserve to be called on the carpet.
• Corporations and unions aren’t people, so the First Amendment doesn’t apply.
Point conceded. Kind of. Corporations and unions aren’t “people” like the ones that you see walking down the street—that much is obvious. What does not follow, however, is the argument that the amendments contained in the Bill of Rights do not apply to them. As Glenn Greenwald so succinctly points out in Salon, there are a number of questions that people positing these arguments ought to answer before opening their mouths further. Consider the following:
Most of you reading this are sitting in front of a computer. Many of you are doing so at work, on a computer owned by your company. Let’s say the FBI raids your company and confiscates your laptop without cause or warrant. What, exactly, has this agent done wrong? Under this misguided criticism of the decision, corporations, not being people, do not have any rights under the Constitution. The Fourth Amendment preventing unreasonable search and seizure does not apply to your company, because you decided that Constitutional rights apply only to people. What are you (or your company) going to turn to in order to get your computer back?
Take it a step further. Do you believe that, despite the Fourth Amendment protection against illegal search and seizure, Congress could pass a law permitting the FBI to wiretap political opponents (e.g., the SEIU or the Chamber of Commerce) of the White House at will? If the Bill of Rights does not apply to unions or corporations, on what do you base your objection?
Let’s start over and consider a different scenario:
A multi-national corporation with billions of dollars per year in profit decides that it’s going to expend billions of those dollars to influence a presidential election. Day in and day out, millions of dollars are spent attacking the policies of one candidate and puffing up the other. Web sites are set up blasting Candidate X and every time you turn on your television you see this corporation ranting about the travesty of democracy that the election of Candidate X would be. Is this your vision of 2010?
Nope. That’s what General Electric (MSNBC) and News Corp (Fox News) did in 2008. And 2006. And 2004. These multi-national corporations(!) and their one-sided political broadcasts are protected under the First Amendment. Why then, should Citizens United, a non-profit corporation with nowhere near the revenues of the above companies, be denied the ability to compete in the marketplace of ideas? Is your position that corporations should only be able to participate in the political process if they have the billions upon billions of dollars required to purchase (watch out Comcast!) or set up their own cable network?
The logical infirmities in that argument should be apparent to anyone capable of operating a computer. The only substantive difference between Citizens United and General Electric for the sake of this argument is that we don’t have the corporate treasury that would allow us to purchase NBC. Why should First Amendment protections be afforded to those corporations with the balance sheet to enable them to start a television channel, but not to a non-profit corporation such as Citizens United, which was founded for the express purpose of advocating ideas?
• Campaigns are going to look like NASCAR races with corporate and union sponsorship.
Those who scream hysterically about candidates being “bought” by corporations ought to take a step back and read the decision—not least President Obama who railed against the Supreme Court for “[reversing] a century of law” in his State of the Union. The century-old ban on corporations and unions giving directly to political candidates still stands. Corporations and unions cannot give one penny to a political candidate from their general treasuries. The longstanding system of restricted donations (currently $5,000 per election) from a political action committee set up by a corporation remains untouched. This ruling permits independent expenditures by corporations for political ads and the like. These cannot in any way be coordinated with any campaign. Deals cannot be cut for support and there can be no quid pro quo in exchange for an ad campaign.
Second, there is the inconvenient and oft-ignored fact that there are 28 states in this nation that allow such expenditures in statewide races. Virginia, which held a closely watched gubernatorial election in November of 2009, is one such state. There were no allegations of impropriety in that election, and those of us who live in the Washington, D.C., area, where television ads for both candidates filled the airwaves, can attest to the fact that the candidates were not drowned out by nefarious corporations blotting out the issues.
I challenge the critics of this decision (no Googling allowed) to name one of the 28 states in the union that permit Citizens United-esque expenditures by corporations and unions and a corruption scandal that was caused by those rules. I can think of plenty of scandals in recent years involving governors, but I can’t think of one that involved legal corporate or union spending in elections.
These are but two of the misconceptions being thrown about by opponents of our case. But the underlying issue is what we should focus on. Censorship is a dirty word in America, and cloaking it in the guise of “campaign finance reform” does not change the facts. For seven years, the government held the threat of prison over the heads of its citizens if they dared speak out about their elected officials in a manner not sanctioned by the government. Last week, the Supreme Court rightfully removed that threat, and as a result, we have reclaimed a portion of our freedom that had been taken away. Are there side effects? Certainly. But there is nothing that I can imagine that is more antithetical to the American ideal than criminalizing political speech. The Supreme Court stopped a 100-year slide down a very slippery and dangerous slope last week, and I am proud to have played a role.