What You Can’t Say Can Hurt You: a Penny for Your (Political) Thoughts

In a recent post, I argued that Millennials have a warped view of free speech, though it was not of their own making.  It’s due to the two headed dragon of modern First Amendment lore, one fire-breathing head to discourage political speech that is not well-regulated and controlled, and another to encourage all manner of speech once considered obscene, as the personal life-fulfillment of its author.  I’ll leave the discussion of what is legally obscene for another day.  But whether the burgeoning field of campaign finance law really has a chilling effect on free speech creates a paradox of sorts.  It’s difficult to prove but easy to recognize.  In that respect, it is reminiscent of Justice Potter Stewart’s famous quip about pornography: “I know it when I see it.”

Citizens United and Citizens United

Just as the Roe in Roe v. Wade and the Miranda in “Miranda warnings” represent actual people, Citizens United represents an actual organization.  It’s a conservative political organization, that exists, as many such groups do, for the purpose of “education, advocacy, and grass roots organization.” It existed decades before its famous Supreme Court namesake, Citizens United v. Federal Election Commission.  If you don’t recall the details of Citizens United, Wikipedia’s got your back:

The conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or “BCRA”).[2] In a 5–4 decision, the Court held that portions of BCRA §203 violated the First Amendment.

Of course, it is illegal for a corporation to donate directly to a political campaign. That was not the issue in Citizens United.  At issue in Citizens was this: at what point does spending on political issues become spending on behalf of a political candidate?

Citizens United complained to the FEC that Michael Moore’s “documentary” Fahrenheit 9/11 was critical of the Bush administration and, therefore, the documentary and its ads constituted “electioneering communication” and should not have been aired within 30 days prior to an election in 2004, as such expenditures were illegal at the time.  After the FEC rejected these arguments, C.U. made its own film critical of Hillary Clinton. When the FEC took C.U. to court over its Hillary film, the case went to the U.S. Supreme Court. The FEC’s slippery attempts to draw legal distinctions between the two films illustrated the absurdity of the law it was charged with enforcing. The Court found that portions of the McCain-Feingold Act violated the First Amendment by prohibiting collective groups of people, like associations, corporations, or unions, from spending money advocating for political candidates.

Citizens unite against “Citizens United.” Before that decision, if just one of them mentioned a candidate’s name during this rally, it would probably have been illegal. I doubt they appreciate the irony.
(Photo Credit: Flickr Barryelevine)

Citizens United is a lesson in recent history wrongly recalled.  It did not allow corporations or unions to donate to political campaigns.  Nor did the decision hold that “corporations are people.” Soylent Green is people.  Corporations are not people.  However, a corporation is an association of people, and the First Amendment makes no distinction between the free speech rights of one random guy, and the rights of a hundred of his neighbors, whatever form their association may take.  If Congress or any state can distinguish between the free speech of some citizens and the lesser (back-of-the-bus?) free speech rights of others, based solely on the nature of their association, how far could it go?  The Court rightly found such distinctions inconsistent with free speech under the First Amendment.

Hello, I’m Ed.  Would you like to talk politics then be my cellmate?

Citizens United was a step in the right direction.  If you need convincing of the absurdities of the long-arm of campaign finance laws, consider the case of Ed Corsi.

Mr. Corsi started a website to discuss his political views.  Then he got together with some friends and sponsored speakers locally, and passed out flyers at the county fair.  Not that it should matter, but Corsi’s speakers only addressed public policy issues, and did not stump for individual candidates.  Records later showed that the website cost him $40 per month and he had perhaps a couple hundred dollars annually in other expenses.  According to the State of Ohio, such activities are illegal without first registering with the state and making reports as to one’s activities.  Apparently, Ed Corsi is the new face of Big Money in politics that must be rooted out if democracy is to survive.

In an op/ed piece last month in the Wall Street Journal, no less than the former chairman of the Federal Election Commission, Professor Bradley Smith, came to Corsi’s defense and lamented the absurdity of laws that put Americans in the position of risking prosecution for engaging in politics.  “Even printing yard signs or running an email list can trigger [state] requirements” he notes.  Corsi’s case, and much more, may depend on how the Supreme Court and Congress address the future of campaign finance.  Handled well, and we might restore some common sense and raise the effectiveness of political debate.  Handled badly, and the mechanisms of government will continue to suppress speech under the guise that Americans fear “big money” in politics more than the plague.

You could say that this year’s Citizens United is McCutcheon v. Federal Election Commission. It was argued on October 8, 2013 in the Supreme Court and involves a challenge to the limits of individual donations.  A decision is not expected until next year, but could come at any time.

As Professor Smith points out, 47 years ago, the Supreme Court struck down a law that prohibited newspaper editorials favoring a particular candidate on an election day, stating: “[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”

I’m sure Ed Corsi hopes that’s still true.