Citizens United Allows Everyone To Air Their Grievances

Brian Walsh Research Fellow, Center for Competitive Politics
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As Americans, we love to speak our minds. In fact, we have such an affinity with expressing ourselves that the right to do so is enshrined in the First Amendment of our Constitution, explicitly protecting our right “to petition the Government for a redress of grievances.” It’s undeniably a quintessential part of our culture.

The iconic 90’s sitcom, Seinfeld, devoted an entire episode to a fictional holiday that embraces this tradition. That holiday, Festivus, is now celebrated every December 23rd and is dedicated to letting people know “all the ways they have disappointed you over the past year” through the ‘airing of grievances.’ What could be more American than watching a television show about nothing featuring a holiday that celebrates complaining about everything?

Well … nothing.

Now, imagine that the government had any laws restricting the right of citizens to “air their grievances” about candidates running for office. Those who wish to criticize politicians could only do so under the government’s seal of approval.

In other words, the government would be basically saying “No speech for you!

Sadly, there was such a law when the Supreme Court took the case, Citizens United v. FEC. And despite all the complaining of the naysayers since then, that case was about whether or not any group of citizens who formed a nonprofit corporation could air their grievances with a political figure, no matter how they might have paid to voice those complaints.

This Festivus, let’s turn the griping on its head. It is time to complain about those complaining about Citizens United. Festivus should be dedicated to ‘airing our grievances’ without government intrusion. Here we go!

I got a lot of problems with you people! Now you’re gonna hear about it!

Grievance #1: Stop misrepresenting what Citizens United was about.

Citizens United is frequently portrayed as a disastrous decision in which the Supreme Court blessed a “corporate takeover” of our elections. And, unsurprisingly, this misleading stigma has benefitted no one in understanding what the case actually contributed to our First Amendment jurisprudence.

Those opposed to free speech have done a very good job preying on citizens’ fear and mistrust of those who seek to influence government. But if the regulatory lobby actually took the time to explain what Citizens United was about, then those who sympathize with their thinking would not be frightened at all. They’d learn that the case was just about a movie. Specifically, whether it was constitutional under the First Amendment to prohibit the airing of a movie that criticized (or supported) a candidate running for federal office within a specified time period before an election, simply because the movie was produced by a group organized in a corporate form. The movie in question, “Hillary: The Movie,” was produced to express a political grievance, in particular, that then-Presidential primary candidate Hillary Clinton was unfit to be president.

The Court’s majority opted to protect the freedoms of Americans to speak however they want, whenever they want, and on whatever subject they want – especially when that speech is about candidates, politicians, and issues of public importance.

The goal of the First Amendment is not to protect the speech of those who a majority of society deems morally right, but rather to protect all from censorship so that we may challenge one another’s thoughts openly. Justice Anthony Kennedy agreed with this tenant when he wrote in theCitizens United decision that “political speech must prevail against laws that would suppress it, whether by design or inadvertence.”

Grievance #2: Stop declaring that corporations are controlling our democracy.

Anti-speech zealots consistently claim that the advent of Citizens United has ‘opened the floodgates’ for corporate money in our political system. Such claims are worthy of a Festivus grievance because they blatantly mislead the public into believing that Citizens United allowed corporations to “drown out the rest of the public” from speaking.

Far from causing a tidal wave of corporate funded campaign speech, to date there has only be a relative trickle.

Not only is there a dearth of corporate-backed Super PACs spending money to spread their message to the masses, but in the five years post-Citizens United, we have seen almost no large corporations take advantage of their newfound ability to voice their opinion on issues of importance to the public. As Sunlight Foundation revealed in their study, 200 of the largest corporations gave just $3 million between 2010 and 2012, with the bulk of that funding coming from a single $2.5 million donation from one corporation to one Super PAC.

This shouldn’t be surprising though. Big corporations are notoriously hyper-sensitive and extremely risk-adverse to becoming politically engaged for fear of alienating their customer base or inspiring boycotts. Few corporations want to be associated with the contentious world of partisan politics.

Thus, despite the fear mongering, the impact of the decision was about whether the federal government had the power to restrict speech, and unequivocally has not led to a corporate takeover of campaign ads and obviously democracy has survived and prospered.

Grievance #3: Stop crying that Citizens United enabled ‘dark money’ to flood our elections.

‘Dark money,’ in layman’s terms, is a purposefully pejorative term used to refer to nonprofit groups that exist for other reasons, but that are sometimes active in the political debate as a small part of their overall mission. Such groups are labeled “dark” because, as non-primarily political entities, they are not required to report the private information of their supporters to the government for permanent publication in an online database.

By far, this has become the silliest of all the hysterics attributed to Citizens United. Once again, a reading of the Court’s opinion in the case presents the exact opposite of the regulatory lobby’s claims. The Supreme Court, specifically, upheld the disclosure law that applied to Citizens United that was already on the books.

Furthermore, despite the hysteria about so-called “dark money” flooding our elections, there is little evidence that such funds play a significant role. Just 4.3 percent of total political spending in the 2012 cycle was spent by groups that do not provide itemized disclosure of their donors. In the 2014 election cycle, that number dipped further to 3.3 percent. Moreover, all spending on federal campaigns is disclosed and many such groups, like the NRA or the Sierra Club, are well known.

Festivus Means Free Speech for All of Us

The Festivus practice of the “airing of grievances” is the perfect example of what the First Amendment exists to protect: the ability to criticize on whatever grounds you think is important. So this Festivus, as you check the strength-to-weight ratio of your aluminum pole, you should also celebrate the decision in Citizens United by ‘airing your grievances’ against anyone who tries to take that right away from you.