Standing up for Citizens United
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In the movie The Usual Suspects, super-villain Keyser Soze is the hidden mastermind of the criminal underworld, manipulating others to his evil ends while cloaking his identity and his very existence in the shadows. It seems that the Supreme Court’s Citizens United decision has taken on a similar reputation, making it responsible for everything that’s wrong with American politics.
Following Gov. Scott Walker’s big win in last week’s Wisconsin recall election, MSNBC’s Ed Schultz argued that Citizens United sent a message “that money has now infiltrated into our political system like we have never seen before” and claimed that Walker outspent Milwaukee Mayor Tom Barrett 7.5 to 1.
Arizona Sen. John McCain blamed the decision for the emergence of super PACs, third-party political groups that spend millions on campaign commercials independent of the candidates they support. “And why do we have the super-PACs?” McCain asked ABC’s This Week. “Because of the ignorance and naivete of the United States Supreme Court in the Citizens United campaign.”
An editorial in last week’s Sunday Monitor called Citizens “a pillow that’s smothering democracy” and cited the supposed fundraising advantage it gave Walker. These critics are not only wrong about what Citizens United really said, but they should support its actual impact.
The nonprofit corporation Citizens United argued before the U.S. Supreme Court that the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold, improperly prevented it from promoting its political documentary Hillary: The Movie. In 2010, the court held that Congress lacked authority to restrict corporate political speech.
Citizens did not create super-PACs and did not have any real impact on the Wisconsin recall. Liberal legal icon Lawrence Tribe correctly pegs the Supreme Court’s protection for political speech to the landmark Buckley v. Valeo in 1976. That case allowed limits on political contributions, but established that spending money on political causes was political speech.
Super PACs are a new way for people to organize their independent political expenditures, but you should blame McCain-Feingold for that. The law made it harder to give directly to candidates and political parties, diverting donations to outside groups.
As for Walker’s alleged cash advantage, those numbers only hold up if you ignore the $21 million unions spent on Barrett’s behalf. Due to a quirk of Wisconsin law that Barrett actually supported decades ago, elected officials subject to recall aren’t covered by campaign donation limits. Big Republican donors wrote checks directly to Walker while big Democratic donors worked through the unions. After adding up all the money spent on the race,
Walker did spend more: $30 million to $25 million. That’s hardly an insurmountable hurdle, and it was all legal before Citizens United.
The Monitor and MSNBC should be happy with how Citizens was decided. Had the court given Congress authority to restrict corporate political speech, they would find themselves no longer protected by the First Amendment.
Claiming that people have rights that corporations lack sounds reasonable, but it is actually pretty silly. Imagine if Congress started shutting churches, arguing that only individuals had the right to practice their religion. We don’t surrender our First Amendment rights when we join a church, and we don’t lose them by incorporating a business.
Both Ed Shultz and the Monitor editorial board have strong political beliefs and use commercial means to spread their messages. If corporations really didn’t have any rights, Congress could shut them down, limiting free speech to whatever we could shout on a street corner.
Citizens United ensures that we not only have the freedom to say what we want about our government, but that we have the right to use commercial means to try to persuade each other.
(Grant Bosse is lead investigator for the Josiah Bartlett Center for Public Policy, a free market think tank in Concord.)
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