October 23, 2013

THROWDOWN THURSDAY: Attempts to Overrule Citizens United are Misguided

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In early 2008, a conservative non-profit organization called Citizens United sought to air a documentary critical of Hillary Clinton, who was then running for the Democratic nomination for President.  The Federal Election Commission wanted to prohibit it from doing so under the Bipartisan Campaign Reform Act of 2002, which banned corporations, unions and not-for-profit organizations from spending money on any communication that mentions a candidate within a month or two of their election. The Supreme Court, in Citizens United v. Federal Election Commission, rightly rejected this governmental censorship, ruling that Congress cannot ban political speech merely because it does not like the identity of the speaker.

The ruling has sparked a massive outrage among many politicians, particularly those on the left.  President Obama condemned the decision to the Justices’ faces during his State of the Union Address and Representative Alan Grayson went so far as to say it was the worse Supreme Court decision since Dred Scott v. Sanford.  Vermont Senator Bernie Sanders is leading the charge to amend the constitution to overturn Citizens United.  This amendment would eliminate so-called “corporate personhood” and restrict free speech rights to “natural persons.”

Campaigners against Citizens United tend to invoke at least one of the following three ideas.  First, that corporations are not people. Second, that money is not speech. And finally, that government must restrict the speech of some so that the relative speech of others is amplified.  I will address each in turn.

It is undoubtedly true that a corporation is not a person in the sense that I am a person. But Citizens United opponents utterly fail to justify why associations of individuals, be they of the corporate, labor or other variety, should not be able to express opinions just as individuals operating on their own can. The Cornell Daily Sun, The New York Times, Cornell University and the American Civil Liberties Union (which supports Citizens United) are not “people” either. Would anyone suggest that Congress prohibit Cornell from expressing support for increased funding for education before a Congressional election, or The New York Times from endorsing Barack Obama for President, on the grounds that allowing these groups to speak would drown out the voices of real people?  Despite the fact that anything said by Cornell or The New York Times constitutes participation in the marketplace of ideas by non-individuals, we nevertheless respect their right to participate in our political system. Why should a film by a non-profit corporation critical of Hillary Clinton be treated any differently?

The second trope utilized by Citizens United opponents is that money is not speech. Given that that is true, so the argument goes, then it surely follows that corporations and other entities can be limited in how much money they can spend on elections. The difficulty with this argument is that it ignores the key role that money plays in facilitating not just free speech, but the exercise of other constitutional rights. For example, money is not a lawyer.  Does it therefore follow that the government could restrict the amount of money I can spend on legal assistance to defend myself at a criminal trial (for the sake of fairness to the indigent, of course) to $100? Additionally, to defend the permissibility of limits on the amount of money that can be spent on an election by any of us, as individuals or as parts of groups, is to empower political incumbents to write the rules of the electoral system that is supposed to hold them accountable. That is not likely to produce a fair system.

But what about the final argument?  If we allow some to use the vast resources at their disposal to speak as loudly as they want, do we not drown out the voices of people of more modest means?

For all the talk from Citizens United opponents about their faith in the people, this final argument is incongruous with what our system of self-government assumes about the people, namely, that they are generally intelligent and have the ability to distinguish between truth and fiction.  If we believe that “the people” are worthy of the power that democracy grants them, we ought to assume that those same people will not automatically accept the veracity of a statement just because it is presented to them ten times a week in the form of crass television advertisements. This is not to say that people can never be fooled — not one of us is perfect — but it is to say that giving self-serving politicians the power to decide how much speech is too much is a cure worse than the disease. Ultimately, it becomes a question of where you place your trust. Do you place it in the people’s ability to decide for themselves what policies and candidates they support in an unfettered marketplace of ideas, or the politicians’ ability to impartially decide who may speak and how much they may speak?

Rather than being derided as one of the worst Supreme Court decisions in history, Citizens United should be celebrated as the triumph of free speech principles over a bipartisan attempt to limit the scope of the First Amendment.  Nullifying it would make us all less free.