The ranks of the ACLU must be dwindling toward zero in the wake of last
week's Supreme Court ruling on campaign-finance law. The rage at that
ruling in liberal precincts has been deafening and apoplectic. It was
a ruling that "strikes at democracy itself" (Barack Obama); "a major
victory for oil companies, banks, health insurance companies and other
special interests" (DNC chairman Tim Kaine); a "blow to democracy" (The
New York Times); a "Supreme Sellout" (The Daily Beast); "Terrifying"
(Huffington Post) . . . .
And on, and on. No wonder the ACLU did not issue a press release
cheering the results of Citizens United v. FEC. But the rights group did
file an amicus brief urging the high court to do just what it did:
strike down the provisions of campaign-finance law that do not square
with the First Amendment.
For those coming late to this party (or those who have been
understandably confused by the shrill rhetoric of the court's critics):
The ruling does not let corporations, unions, or incorporated interest
groups donate directly to federal candidates. But it does let them spend
money from their general treasuries to air campaign commercials for or
against candidates, especially in the crucial 30 days before a primary
and 60 days before a general election.
Many who find this outrageous object that incorporated entities are not
persons, therefore they do not have the same rights as persons do. And
this is true to some extent. Corporations, unions, and interest groups
have no right to vote, or to bear arms. But they do have other rights,
such as to property and privacy. (Try barging into the offices of The
New York Times and rifling through the files, and see how far you get.)
Those objecting to the Supreme Court's ruling in Citizens United
certainly do not mind corporations being treated as persons for the
purpose, e.g., of suing them on product-liability or environmental
grounds. They also might want to ponder a point made by a lawyer friend
over the weekend: "A corporation is an association of individuals, and
individuals clearly have the right to associate, protected by the First
Amendment. To accept the federal law that was struck down would be to
accept the proposition that you can spend your money to publish a book,
movie, or advertisement advocating against a candidate during an
election, and that I can do so as well, but that you and I cannot
associate and do so together as a corporation. That somehow, by
exercising one First Amendment-protected right association we lose
another: free speech."
The trouble with circumscribing the free-speech rights of incorporated
entities is that it leads to government censorship of a very nasty sort.
This came out during oral arguments in March. Citizens United had wanted
to make available "Hillary: The Movie" during the Democratic primaries
in 2008, when campaign-finance rules said such electioneering
communications were verboten.
Lower courts had decided the movie was, in effect, a campaign
commercial. Deputy Solicitor General Malcom Stewart said it does not
matter how long a campaign commercial is, and it does not matter if the
film is a quasi-documentary. A movie is no different from a campaign ad
if it appeals to voters for the election or defeat of a political
candidate. This raised an obvious question, which Justice Samuel Alito
asked: What about books? Could a book critical of a political candidate
amount to the "functional equivalent" of "express advocacy" thereby
requiring it to be banned? Stewart said yes.
The same question was later put to Fred Wertheimer, formerly of Common
Cause and now of Democracy 21, an organization that works to "eliminate
the undue influence of big money" in politics. "A campaign document in
the form of a book can be banned," he said.
Not just campaign documents. Any electioneering communication produced
by any incorporated entity should be banned under the laws the high
court has struck down. That would include, say, The Audacity of Hope, by
one Barack Obama. But it is impossible, logically, to say that a
corporate-funded political book should be allowed while a
corporate-funded political movie should not. They are both political
It is precisely because campaign-finance regulations censored
corporate-funded speech that the regulations carved out an exception for
media corporations. This amounts to an explicit admission that the
government was censoring everyone else.
It also reduces to hilarity the bombastic denunciation of the court by
Keith Olbermann, who suggested the decision in Citizens United had
replaced Dred Scott as the worst ruling in American history because
it would allow other corporations to do what MSNBC is permitted to do,
namely disseminate opinion about politics.
Indeed, many high councils of the media elite shared Olbermann's outrage
that their parent corporations no longer would enjoy special exemption
from the prior restraint imposed on all the rest. But if the government
can extend that special exemption to media companies, then it also can
take it away. This means that until last week's ruling, the media stood
in the same position as Jonathan Edwards' sinners in the hand of an
angry god who are spared from torment by nothing but the Almighty's
forbearance, which is "restrained by no obligation, hindered by no
manner of difficulty."
Fortunately, the majority on the court joined the ACLU in recognizing
that government must not become the umpire of political discourse,
deciding who gets to speak and who does not. The question as to whether
incorporated entities like the Sierra Club, the NRA, and the local
bricklayers' union enjoy a full panoply of rights may be murky. But on
the question of government power, the Bill of Rights is very clear. It
begins, "Congress shall make no law . . . ."