There is a lot of ore to mine in the Citizens United vs. Federal Election Commission Supreme Court decision last week that rightly (and finally) eviscerated the noxious and unconstitutional McCain-Feingold campaign finance law. But let’s start with the big picture: This is a tremendous victory for free speech rights.
The Supreme Court reconstituted the public’s right to express its political opinions when it matters most, during the last weeks of an election — though it’s troubling that the decision was a bare 5-4 count. That said, even a narrow triumph for liberty is still a victory to be celebrated.
But in all the hubbub, many have lost sight of the specific controversy in question. Before this decision, a single unelected federal bureaucracy (the FEC), declared it a crime for a conservative nonprofit organization to allow the public to see a film called “Hillary: The Movie.” Citizen’s United, technically a corporation (but a tiny one), wanted to express its view that Hillary Clinton would be a terrible president. Because Citizens United wanted to express that view when it would be most relevant — when Hillary was competing in the Democratic primaries — it could not be permitted.
Let’s boil it down in one sentence: A political documentary was banned by the government. That is simply un-American. And, again, four of the nine Supreme Court Justices thought that was OK; that it was not a violation of free speech our Founding Fathers ensconced in the Bill of Rights of the U.S. Constitution — and right at the top!
Thank God for the Bill of Rights, which many in the Revolutionary Generation did not think was necessary because the right of the people to speak out against their government (or mere politicians) was assumed by all. The thinking among many was it was folly (at best) and dangerous (at worst) to start writing a Bill of Rights because you can’t delineate all the rights of the people. And if you start specifying rights, many Founders believed, any liberty you don’t specify in the Constitution will be trampled by the state. It turned out that 200 years after those arguments were made, the state would not only invent new rights and authorities, but ignore the First Amendment (if only temporarily) to do it.
We have “swing” Justice Anthony Kennedy to thank for this restoration of our free speech rights. He wrote the majority opinion, which reflected the amazement he and his concurring justices expressed during the oral arguments in the case. The federal government — our federal government — argued that there were virtually no limits to the state’s power to suppress political speech under the McCain-Feingold regime, which requires a bit of background from this non-lawyer.
Briefly: In an effort to “weed out corruption” and money from our political process, McCain-Feingold made it illegal for corporations and non-profit organizations to speak about specific politicians within 30 days of a primary and 60 days of a general election. (There is a reason why critics call McCain-Feingold the “Incumbent Protection Act.”) This restriction accomplished nothing of value, of course. Money, like water, makes its way. That is why corporations and nonprofit groups kept running their TV ads — but they were “issue ads” that left the viewpoint and political target only transparently vague. Political organizations, such as the Republican and Democratic National Committees, and official candidate campaigns could still run their ads — but without the farcical veil. So aside from whom could say “Vote for X; Don’t Vote for Y,” little on the surface had really changed.
But the Supreme Court was tasked with deciding a larger issue: Whether McCain-Feingold’s Kabuki dance was constitutional. In short, does the federal government have the right to throw someone in jail if they don’t jump through every restrictive hoop they’ve set up? Kennedy, writing for the majority, said “no,” declaring McCain-Feingold nothing less than censorship.
…[w]hen Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves. … “For me, the choice between putting up with corporate ads or jailing citizens for political speech is a simple one.”
Kennedy here hits on a point that has always bugged me. Campaign finance fetishists, mostly on the left, presume the public — you and me — are morons. But only sometimes. We can decide whether or not to get married. Or enlist in the armed services. We can decide whether or not to have an abortion, or engage in assisted suicide. We can even be entrusted with the power of the vote. But we cannot be trusted to consume all sorts of political communication, weed out the wheat from the chaff, and come to our own conclusions. No. We are “victims” of “moneyed interests” who brainwash us into making the wrong decisions.
Getting back to the oral arguments, Kennedy and the conservative bloc on the Supreme Court delved into the absurdity of the McCain-Feingold regime. Television, or “broadcast,” political communications was banned come election time. But the government was not arguing about the venue of communication, but of the communication itself. What if “Hillary: The Movie” was “Hillary: The Book”? What if that book was released within 30 days of a primary election? What if that book’s final line stated: “Don’t vote for Hillary Clinton?” The government’s response to the Supreme Court: That would have to be banned, too, under McCain-Feingold.
Astounding. The government of the United States was arguing before the Supreme Court that it had the power to ban books if those books did not please members of Congress. David Bossie, the head of Citizens United, said on The Mark Levin Show on January 21 that when he heard this exchange in the Supreme Court’s chambers, he knew he had won.
Let’s also remember that “Hillary: The Movie” was not slated for “broadcast” release in the usual sense. Bossie was offering it up as a pay-per-view movie. So our government’s position was that Americans could not even freely choose to pay to see his documentary. To offer that speech was a crime, and to view it was forbidden. That fact makes me wonder: How is something like Michael Moore’s “Fahrenheit 911” — the anti-Bush propaganda film released in theaters the summer before the 2004 presidential election and on DVD one month before the election — constitutionally permissible, but “Hillary: The Movie” is not? And in the YouTube era, how is such a regime even enforceable? Was our federal government prepared to force YouTube, or millions of bloggers, to take down their videos expressing their own political speech? Apparently, the answer is “yes.” Or, happily, was “yes.”
This analysis is already longer than I intended, but one more vital point: The restrictions on corporate speech at election time applied to all types of corporations, save one: Media corporations. ABC News is owned by a corporation called Disney. NBC News is owned by General Electric. CBS News is under the Viacom’s corporate umbrella. Fox News is owned by NewsCorp. The New York Times is a corporation. So is The Washington Post. USA Today is owned by Gannett. Even most small-town newspapers are owned by corporations. But they are allowed — or were allowed — under McCain-Feingold to express their free speech rights when it comes to politics without any restrictions. Other corporations did so at penalty of prison. As Bossie put it in a blog post on Big Journalism:
Why should General Electric, which owns MSNBC, be permitted to use its nearly unlimited resources to influence elections, while I, who made “Hillary: The Movie” using corporate funds for roughly .03% of the budget, could be put in prison for airing the documentary?
Good question — answered well by a bare majority of the Supreme Court.