Liberals’ Latest Effort To Resist Citizens United

John Ryder Co-Chair, Republican National Lawyers Association
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Since the Supreme Court decided Citizens United v. FEC, liberals have been trying to overturn it on the national, state, and local level. The latest effort to overturn Citizens United comes from Multnomah County, Oregon, the county in which Portland is located.

Since the Left completely misrepresents the holdings in Citizens United it is important to review what actually happened in the case.  Citizens United, a conservative non-profit, made a movie critical of Hillary Clinton and wanted to air and promote it in the months leading up to the 2008 election.  But federal campaign finance law prohibited it, because Citizens United is a corporation and it wished to discuss a candidate.  So, Citizens United sued.

Of course, we can only wonder if liberals would be so overwrought about Citizens United if the case were about a liberal organization making a movie critical of Donald Trump or Mitch McConnell or Paul Ryan.

The Supreme Court decided that individuals do not lose their First Amendment right of free speech when they join together into organizations, associations, corporations, and unions.  Specifically, corporations and other organizations may spend unlimited amounts of money to speak, just as an individual may, as long as the political spending and speech is not coordinated with a candidate or political party.

Unlike what you hear frequently in the mainstream media, Citizens United did not allow corporations, foreign corporations, or foreign nationals to contribute to candidates or political parties.  Such donations are still completely prohibited.  It did not establish the legal doctrine of corporate personhood, which has existed for hundreds of years.  It upheld disclosure requirements for political spending, though fear mongering about “dark money” still prevails in the media.

Importantly, Citizens United was a constitutional, not a statutory or regulatory, decision.  Which means that the right of a corporation or other organization to speak independently on political issues cannot be overturned by federal, state, or local legislation.

Being a recognized First Amendment right of free speech has not stopped liberals from trying to overturn Citizens United since the decision was released in 2010.  States have resisted updating their laws, regulations, and official policies to reflect the decision’s holdings, and some states and localities have passed new laws attempting to restrict the speech right recognized in Citizens United.  The Federal Election Commission itself did not update its regulations until 2014, four years after decision, because the Democrat commissioners objected to the speech right recognized in Citizens United and blocked every attempt to update the written regulations to reflect current law.

In 2016, Multnomah County, Oregon, passed, and voters approved, a measure which created contribution limits, expenditure limits, registration requirements, and disclosure requirements for spending related to county races.  The expenditure limits provide that individuals and entities may only spend money if the money was collected subject to the contribution limits.

The new rules also limit aggregate independent expenditures per election cycle for individuals and political committees, impose no independent expenditure limits on small donor committees, and completely prohibit independent expenditures by all other entities, including corporations and non-profit organizations.

The primary problem with this misguided effort restricting constitutional rights of political speech is that it ignores not only Citizens United but also 40 years of settled campaign finance case law.

The only government purpose that allows regulation of campaign spending—constitutionally protected political speech—is the goal of preventing corruption and the appearance of corruption.  And the Supreme Court has repeatedly held, even before Citizens United, that this anti-corruption goal cannot be applied to restrict independent political spending by outside groups (which was protected in Citizens United).

Other justifications for such laws, such as reducing campaign costs, encouraging diversity among candidates, and equalizing the “volume” of speech from different groups, have been repeatedly rejected as unconstitutional.  Likewise, attempting to enforce contribution limits (which are still constitutional) through expenditure limits is unconstitutional.

Putting aside federal constitutional law, Oregon Supreme Court decisions prohibit both expenditure and contribution limitations under the Constitution of Oregon because “political contributions constitute expression.”  Because of these decisions, Oregon is one of the few states that does not impose contribution limits on either individuals or entities.

Multnomah County filed a petition for validation of the rule in Oregon state court in May.  The Taxpayers Association of Oregon, represented by the Center for Competitive Politics, is seeking to intervene in the case and has masterfully outlined the legal problems with new rules and with the rule’s supporters’ arguments.  The court held a lengthy hearing on Tuesday and a decision is expected soon.

The outcome of this case could have important repercussions for liberals’ efforts to resist Citizens United and the important political speech rights protected in it not only in Oregon but across the country.

If the court upholds the Multnomah County expenditure limits, the County will undoubtedly lose on appeal.  But citizens should not have to file lawsuits and pursue costly appeals, often all the way to the U.S. Supreme Court, simply to protect their recognized free speech rights.

The rule of law requires that state and lower federal courts follow established Supreme Court case law even when it is politically unpopular in the area the court is located.  The rule of law and preservation of constitutional freedoms likewise require that states and localities not be permitted to repress free speech rights, particularly political speech rights, because of a foolish desire to equalize everyone’s speech.  This is true whether the speech is about Hillary Clinton, Donald Trump, or Jane Doe running for city utilities commissioner.