The national unemployment rate is hovering around 9.5 percent and the Bureau of Labor Statistics announced that in July we lost 131,000 jobs. With the current economic situation it is no surprise that President Obama wants to talk about anything but the economy.
This week, President Obama used his weekly radio address to confront what clearly must be the greatest problem facing the American public, campaign finance reform. Forget about jobs and unemployment, when families sit down at the dinner table tonight they’re going to be talking about campaign finance — I don’t understand how the White House can be so out of touch with the American public.
He used his bully pulpit to again attack the Supreme Court’s decision in Citizens United — an issue of such concern to the president that he addressed it in both his State of the Union address and in his announcement of the appointment of Elena Kagan to serve on the Supreme Court. He sought to strike fear into the hearts of the American public that big business and foreign interests will dominate our elections. The problem is he’s not telling the whole story.
Citizens United v. FEC restored the First Amendment right to political speech. Small businesses, labor unions, non-profit organizations, and yes, corporations can now run political advertisements advocating for or against candidates for public office.
The case came about because Citizens United, a 501(c)(4) membership-based organization, sought to promote and air a documentary that was critical of Hillary Clinton. Michael Moore for years had been allowed to promote and distribute his films that were critical of President Bush, but should Citizens United have promoted its film on television or broadcast it via video-on-demand, they would have faced potential monetary and criminal penalties.
Think about that for one moment — one could have been jailed for broadcasting a film. That’s certainly not what our Founding Fathers envisioned when they wrote that “Congress shall make no law … abridging the freedom of speech.”
Citizens United filed suit to defend its rights — two years later the Supreme Court restored the First Amendment protection to political speech. This ruling allows organizations like Citizens United to better represent their members. Broad and diverse groups of people can join together and speak with one voice, without fear of imprisonment. That’s overlooked by President Obama when he describes Citizens United as “a decision that now allows big corporations to spend unlimited amounts of money to influence our elections.” President Obama may know something about corporate influence on elections — when he ran for the Illinois State Senate, he drew nearly two-thirds of his campaign funds from corporations, unions, and PACs.
President Obama also seeks to strike fear into the American public by stating that foreign-controlled corporations can run unlimited ads to influence our elections. President Obama knows better. While the Citizens United decision restored the First Amendment protection to political speech, it did not overturn the Section 441(e) ban on foreign participation in elections. It is still illegal for foreign nationals to contribute to political campaigns, political parties, or to make independent expenditures or electioneering communications.
President Obama is correct that an American corporation which has a foreign investor may run political ads. Take for example Verizon Wireless — the Center for Competitive Politics reports that Verizon Wireless is “a Delaware corporation headquartered in New Jersey with 83000 U.S. employees and 91 million U.S. customers.” Vodafone, a British corporation, owns a portion of Verizon Wireless. Is Verizon Wireless really a foreign-controlled corporation that deserves President Obama’s scorn?
President Obama brings this issue up again to rally support for a likely unconstitutional piece of legislation, the Democracy is Strengthened by Casting Light on Spending in Elections Act, or more simply, and misleadingly, the DISCLOSE Act. This legislation would raise the cost of running political advertisements to the point where small membership-based organizations would be effectively silenced. It would do so by imposing burdensome reporting and disclosure regimes as well as requiring the inclusion of up to 14 seconds of disclaimers in a standard television ad.
President Obama hails this speech-restricting legislation as “a matter of common sense” and notes that the legislation was “supported by Democrats and Republicans.” While technically correct — the legislation received the votes of two Republicans in the House of Representatives: Representative Joseph Cao and Representative Mike Castle — it is misleading to portray this legislation as a bipartisan effort. It is an effort by the current Democratic majority to silence political speech, out of fear for what the American public may say in this election cycle. It’s time for the president to start focusing on the economy rather than fighting to protect vulnerable incumbent politicians.
Chris Berg is an attorney in Washington, DC. He has provided advice to organizations including the Republican National Lawyers Association and the Young Republican National Federation. He previously served as a political appointee to the Department of Labor’s Office of Labor-Management Standards. He currently serves as Assistant General Counsel to Citizens United.
