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The Myth of the Citizens United Monster

Originally Published in the Herald-Mail

Government Transparency

by Thomas A. Firey

OP-EDS

MAY 16, 2012 Bookmark and Share

In January 2008, a political activist group called Citizens United released Hillary: The Movie. The documentary sharply criticized Hillary Clinton, who was then a U.S. senator and candidate for the Democratic Party's presidential nomination. The film didn't expressly tell viewers not to vote for Clinton, but it portrayed her as clearly unfit for office.[1]

Citizens United wanted to share that opinion with the public, so they paid a video-on-demand company to make the film available to cable TV viewers for free. They also advertised it on TV. The group believed they could do all this under the First Amendment's guarantee that "Congress shall make no law ... abridging the freedom of speech." After all, what's free speech for, if not to criticize a politician running for office?

The Federal Election Commission disagreed. Because the film criticized Clinton, the FEC said Citizens United was violating the 2002 McCain-Feingold Act. Under the act, no union or incorporated group-including a nonprofit like Citizens United-can air an "election communication" that "refers to a clearly identified candidate for Federal office" in the weeks before an election. Apparently, free speech only goes so far, and it doesn't reach to election time.

In fact, the FEC said, the Constitution allows the banning of all sorts of speech about politicians during election campaigns. When Citizens United appealed to the U.S. Supreme Court, government lawyer Malcolm Stewart told the Court that the First Amendment didn't protect books printed by corporate publishers if they could influence elections. Or books produced by unions. Or protest signs made by corporations or unions.[2]

The idea that the Constitution permits book- and sign-banning proved too much for the Supremes. The Court struck down the ban on "electioneering communications," ruling that unions and corporations have the right to share their opinions with the public. The Court even said those groups can expressly urge people to vote for or against candidates. Ruled the Court, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."[3]

Ever since, some politicians and commentators have raged against the Citizens United decision. Washington Post columnist E.J. Dionne has called it a "catastrophe."[4] Herald-Mail writer Allan Powell says it's a "monster."[5]

But the critics can't give a good explanation for why they're so upset.

Critics ranging from Powell[6] to President Obama[7] have claimed the ruling allows corporations to donate money to candidates' campaigns, in effect legalizing bribery. This is clearly false. The Court stressed in its ruling that the 1907 Tillman Act's ban on corporate campaign donations remains good law.[8] But even if it weren't, campaign donations are a shabby form of bribery. The money can only be used for campaigning-for candidates communicating with voters-as John Edwards' current legal woes illustrate.

President Obama and other critics have also claimed the ruling would "open the floodgates for... foreign corporations" to meddle in U.S. elections.[9] Again, this is clearly false. It remains illegal for foreign nationals-including foreign corporations-to contribute to U.S. political campaigns or parties or make "electioneering communications."[10]

Another claim, made repeatedly by the New York Times[11] and echoed by the Post's Dionne[12] and Dana Milbank,[13] is that the ruling removed limits on how much money individuals can donate to political action committees and activist group "superPACs." This, too, is clearly false. The ruling did not involve individual contributions.[14]

The strangest criticism is that the Court somehow conferred "personhood" on corporations in order to give them free-speech rights.[15] This is as false as it is bizarre. The Court simply recognized that corporations and unions are associations of rights-bearing people, just like families, churches, colleges and newspapers. The First Amendment protects those associations' right to speak as a group, just as the Fourth Amendment protects their property from unlawful searches and seizures, and the Fifth Amendment protects their property from uncompensated seizure and guarantees them due process of law.[16]

The Citizens United "monster" is a myth-a political bogeyman. So then, really, why do these critics rail against the decision? Because they dislike corporations and want to bar them from sharing opinions with the public. After all, it's much easier to gain political victories when one's opponents are silenced. Only open-minded people committed to civil liberties and public discourse would protect their opponents' right to free speech. But if we demand that corporations operate lawfully, pay taxes, and be "good corporate citizens," how can we conscionably prohibit them from speaking to the public about those laws and the politicians who make them?



[1]  Citizens United v. FEC, 130 S. Ct. 876 (2010), at 887-890.

[2]  Adam Liptak, "Justices Seem Skeptical of Scope of Campaign Law," New York Times, March 25, 2009; Bradley A. Smith, "The Myth of Campaign Finance Reform," National Affairs, Winter 2010 (2); Citizens United v. FEC, 130 S. Ct. 876 (2010),  at 894-895.

[3]  Citizens United v. FEC, 130 S. Ct. 876 (2010), at 904.

[4]  E.J. Dionne, Jr. "The Citizens United Catastrophe." Washington Post. February 5, 2012.

[5]  Allan Powell. "Citizens United Decisions Is a Two-Year-Old Monster." Herald-Mail (Hagerstown, Md.). April 13, 2012.

[6]  Allan Powell. "Personhood-Entering a Semantic Jungle." Herald-Mail (Hagerstown, Md.). December 9, 2011.

[7]  Barack Obama. "Remarks of the President in State of the Union Address." January 27, 2010.

[8]  Citizens United v. FEC, 130 S. Ct. 876 (2010), at 887, 909.

[9]  Obama. "State of the Union."

[10]  Citizens United v. FEC, 130 S. Ct. 876 (2010), at 947 (Stevens, J., dissenting).

[11]  See Wendy Kaminer, "The New York Times' Disingenuous Campaign against Citizens United," The Atlantic, February 24, 2012.

[12]  Dionne. "Catastrophe."

[13]  Dana Milbank. "Kamikaze Gingrich, on the Loose in South Carolina." Washington Post. January 11, 2012.

[14]  Dan Abrams, "The Media's Shameful, Inexcusable Distortion of the Supreme Court's Citizens United Decision," Mediaite.com, February 8, 2012. See also Citizens United v. FEC, 130 S. Ct. 876 (2010), at 937, fn. 15 (Stevens, J., dissenting).

[15]  See, e.g., Powell, "Personhood"; Powell, "Monster."

[16]  See Citizens United v. FEC, 130 S. Ct. 876 (2010), at 928 (Thomas, J., concurring).