Natchitoches, LA - There’s no such thing as a free lunch. There are always tradeoffs, and that’s as true with civil liberties as in the marketplace. The tooth-gnashing over the Supreme Court’s ruling in Citizens United v. Federal Election Commission is louder for the inability of the tooth-gnashers to understand that simple fact. Citizens is neither a disaster for democracy nor a gift to Republicans. Neither does it take us into new and unprecedented territory. History didn’t start when the rule now overturned by the Court was created.
Citizens v FEC began with a film documentary, Hillary: The Movie. A nonprofit corporation, Citizens United, produced the politically conservative movie when it seemed that Mrs. Clinton might win her party’s Presidential nomination. Because Federal law, in particular section 441b of the Bipartisan Campaign Reform Act (the BCRA, better known as McCain-Feingold), threatened legal penalties if the movie were distributed within 30 days of a primary election, Citizens United asked a U.S. District Court to grant it prior permission to advertise and then release the movie through video on demand. The injunction was denied by the Court and the FEC disallowed the movie’s distribution.
The Supreme Court overturned the District Court decision, effectively killing that provision of the BCRA. Supporters of the decision see this as a victory for the First Amendment. Critics view it as carte blanche for the corruption of our political system.
Paid political ads are speech, even when they’re paid for by rich people and corporations. It’s clear that the BCRA limited speech, and most importantly that it limited political speech. Laws that limit political speech are subject to strict scrutiny which requires both that the Government show that the law furthers a compelling interest and that the law be narrowly tailored to meet that interest. The prevention of political corruption may be such a compelling interest, but there was a real First Amendment cost to the law. If you accept the rationale for the law, there was no simple black-and-white issue for the Court to decide, but rather a tradeoff between two goods, free speech and “cleaner” politics.
In a sense, supporters of the BCRA wanted to bomb the village in order to save the village – they wanted to restrict one of the important fruits of our democracy in order to save (in their view) our democracy. Worse, the tradeoff in this case is unclear. Corporations aren’t the only aggregations of wealth that are injected into the political process, and singling out corporate wealth as uniquely corruptive of that process is based on the unproven assumption that it is. Prior restraint on political speech based only on corporate identity is an attack on the First Amendment that doesn’t meet the highest standard of “compelling interest” that such an attack demands.
Much has been made of the fact that the Supreme Court overturned precedent in this case. The Court ruled in Austin v Michigan Chamber of Commerce that political speech could be banned “based on the speaker’s corporate identity,” but prior to Austin the record of jurisprudence went the other way. The Court had explicitly included corporations in First Amendment protections and had invalidated a Federal Election Campaign Act ban on campaign expenditures by individuals, unions, and corporations that, in the reasoning of the Court, would have fallen even if the ban had exempted individuals. Critics of Citizens seem to think that Court precedents should ratchet in one direction, theirs. It isn’t unseemly that the Court overturn precedent. Earlier courts aren’t infallible, and while stare decisis gives important stability to our legal framework, people are undisturbed when instability is in their favor. Witness for instance the Court’s repudiation of its reasoning in Hardwick with Lawrence v Texas, a scant decade later. Liberal critics of Citizens were probably unperturbed by Lawrence.
Citizens United v FEC isn’t the partisan political gift that some suggest. It’s a gross caricature to see corporations as the giant, rapacious, wealthy friends of the GOP. There are thousands of corporations in this country, most of them very small, many of them run by people like Ben and Jerry (ice cream) and Sergei Brin (Google). There are mom and pop corporations with a single share holder (and it’s perverse that that single shareholder would be prohibited from making corporate donations), and there are news corporations with millions of shareholders that were exempt from the law, no matter how partisan their news analysis might be (MSNBC or Fox, anyone?). Corporate interests are as often served by Democrats as by Republicans, and donors are more prone to give money to power than to parties. Partisan posturing over this decision is premature and probably misguided.
It’s appropriate and important that the White House and Congress devote attention to finding ways to keep money from corroding our political process. But there are tradeoffs that we should be hesitant to make as we remember that there are competing goods and competing positive values in our society. We can’t have unlimited freedom and perfect security at the same time; equality and liberty often conflict. Your most treasured rights and principles may conflict with mine. In deciding Citizens United v FEC, the Supreme Court came down on the side of decades of precedent and the recognition of free political speech as the paramount value. It’s now up to Washington to work within constitutional limits set by the Court to protect the competing values of our republic.
From the age of six economist Jim Picht always knew what he wanted to be. Economist wasn’t it. But after accidentally falling in to it he found that he liked it. Now he also likes raising his two children, being a husband to Lisa, and making jewelry that he can’t bear to sell. He’d like to limit political speech, but he doesn’t trust anyone else with that power.
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