Libertarians led by the Institute for Justice filed briefs and agitated in coalitions against ever more bizarre laws that greatly restricted and often criminalized criticism of officials under color of ‘fair elections’ –Libs arguing that the whole regulatory apparatus was repugnant to free speech.
The Libs were the first to ask the fundamnental question instead of arguing mere technicalities– In a surprise decision the US Supreme Court agreed, sending Congress back to the drawing board after ending a century of increasingly perverse election regulations that punished independents and privileged incumbents.
LI recommends for study more voluntary systems of base financing and spending limits by candidates, but no restrictions on other speech, and removal of the root cause of the regulatory abuse of power: the legalized power to abuse through regulation favoritism. Libertarian candidates should not accept unseemly monies. NB: Kamniner is not associated with LI
“…IJ Attorney Paul Sherman added, “Absent from almost every attack on Citizens United is any description of what the case was actually about. At its core, Citizens United concerned a law that gave the federal government the power to fine or imprison people if they used money from a corporate or union treasury to pay for political speech. The government was literally asserting the power to ban the distribution of a political documentary and even pamphlets or books. ..”
May 21 2012, 4:13 PM ET
Facts matter, Montana Attorney General Steven Bullock argues to the Supreme Court in ATM v. Bullock, defending a state court decision upholding Montana’s ban on independent corporate expenditures, which defies Citizens United. The plaintiffs/petitioners in ATM argue that Montana’s high court acted in “blatant disregard” of its duty to follow Supreme Court rulings on constitutional rights, Bullock notes. But “that can only be true if facts are irrelevant.” The fact is that Montana’s law is effectively consistent with Citizens United, he argues: As a practical, factual matter, it operates to impose disclosure requirements that Citizen United upheld; and unlike the abstruse, federal regulatory scheme at issue in Citizens United, Montana law is “minimally burdensome” and enforced through civil rather than criminal sanctions.
It seems unlikely that the Supreme Court will be persuaded by this effort to distinguish Montana’s ban on corporate speech from the federal ban struck down only two years ago. (Justices Ginsburg and Breyer, who dissented in Citizens United, joined in issuing a stay of the Montana court ruling, noting that state courts are bound by Supreme Court decisions.) The Court’s Citizens United majority seems equally unlikely to reconsider, narrow its ruling, and limit the First Amendment rights of corporations to engage in political speech, although Breyer and Ginsburg have urged them to do so, citing the “huge sums currently deployed to buy candidates’ allegiance.”
Facts matter, supporters of Citizen United reply to its critics, and the fact is that corporations are responsible for only a small percentage of the “huge sums” deployed in the 2012 election. Individuals have contributed most of the funds. In fact, Senate Majority Leader Mitch McConnell points out (in an amicus brief authored by Floyd Abrams) the “corporate tsunami” predicted (and alleged) by Citizen United opponents “simply did not occur.”
“There are now facts that bear on the concerns expressed by (Citizens United) critics,” the McConnell brief stresses:
A review of FEC records for independent expenditure-only committees — i.e. the so-called Super PACs — supporting the eight leading Republican Presidential candidates has evidenced minimal corporate involvement in the 2012 election cycle … not a single one of the Fortune 100 companies has contributed a cent to any of these eight Super PACs … of the entire $96,410,614, (contributed to the Super-PACs,) 86.32% was contributed by individuals, 12.87% by privately held corporations and less than one percent — 0.81% — by public companies.
These are the facts often trivialized or ignored by opponents of Citizens United, many of whom should and probably do know better. Consider the amicus brief submitted by Free Speech for People (et al.). It stresses recent, overall increases in independent expenditures and generally conflates corporate and individual spending, referencing “super-PACs funded by the corporate and wealthy elite” and citing large expenditures by individuals, like Sheldon Adelson, to buttress arguments against Citizens United.
Why? If Citizens United were reversed tomorrow, Sheldon Adelson would retain the right to spend his money on electoral speech. The amount of money contributed by relatively few individuals so far, and expected to be contributed before November, may be unprecedented (and takes several non-profit organizational forms in addition to the “super PACs”), but the individual right to contribute it was recognized by the Supreme Court back in 1976, in Buckley v Valeo. That’s a fact.
But factoids dominate this debate, and, by now, it is probably futile for me to continue contradicting them. The belief that Citizens United imbued Adelson and others with the right to indulge in independent political expenditures is pervasive and probably un-correctable. It is now an article of faith among reformers that that Citizens United is directly responsible for outsized, independent expenditures. Facts matter to Citizens United critics, except when they don’t.
Consider this claim disseminated by NPR in a report on the recently aborted anti-Obama/Rev. Wright ad proposed to billionaire Joe Ricketts: “Even if the content of this proposal is dead for now, the concept illuminates something new in 2012. Since the Supreme Court opened the doors to unlimited spending by outside parties, any billionaire with an idea can try to tilt the scales.”
How soon they forget. In 2004, six years prior to Citizens United, a few billionaires with ideas funded the swift boating of John Kerry, which helped “tilt the scales” for George W. Bush (and, as the McConnell brief notes, George Soros “spent over $24 million supporting Democratic candidates that same year.”). Indeed, decades prior to Citizens United, before a billion was the new million, rich people were trying to “tilt the scales,” as veterans of the 1968 McCarthy presidential campaign, funded by a few rich liberals, can attest.
Today, super-rich conservatives are committing vast sums to defeating President Obama and delivering the Senate to Republicans. Super-rich liberals are holding back, partly out of disdain for the process, Democratic candidates lament. So it’s not surprising that Democrats tend to favor campaign-finance restrictions while Republicans oppose them.
Money talks, critics of Citizens United complain (all the while insisting that money isn’t speech.) But if Republican money effectively buys votes, don’t blame the Court, and don’t just blame the Koch brothers. Blame the voters as well. Independent expenditures can’t exert undue influence on a skeptical, informed electorate not susceptible to the bombast, melodrama, or sentimentalism of political advertising. Can a handful of billionaires buy the election? Perhaps, when facts don’t matter.
Citizens United, Two Years Later: Institute for Justice Continues to Defend Landmark Free Speech Ruling
WEB RELEASE: January 20, 2012
John Kramer (703) 682-9320
“The irony here is that people and groups are gathering together to speak out against a case that protected the right of people and groups to gather together and speak out. We don’t lose our freedom of speech by exercising our freedom of association.”
Arlington, Va.—Tomorrow, January 21, 2012, marks the second anniversary of the U.S. Supreme Court’s landmark ruling in Citizens United v. FEC. As proponents of campaign finance restrictions prepare to protest the decision, the Institute for Justice (IJ), the nation’s only libertarian public interest law firm, is standing up to defend that ruling.
“Citizens United recognized that the First Amendment is about protecting speech, not about protecting favored speakers,” said IJ Senior Attorney Steve Simpson, who authored the friend-of-the-court brief IJ submitted in Citizens United v. FEC. “Congress has no more power to ban speech by American corporations than it does to ban speech from any American who wishes to add his voice to the political debate.”
Opponents of Citizens United commonly argue that the decision is flawed because it held that “corporations are people.” But as Simpson noted, “Citizens United simply recognized that corporations are associations of people—and those real people don’t lose their First Amendment rights merely because they associate with one another to make their speech more effective.”
“Simply put,” Simpson said, “if individuals have free speech rights, citizens who band together as unions and corporations also have free speech rights. We don’t lose our freedom of speech by exercising our freedom of association.”
Simpson continued, “The irony here is that people and groups are gathering together to speak out against a case that protected the right of people and groups to gather together and speak out.”
Opponents of Citizens United also claim that the ruling held that “money is speech.” But, as IJ-WA Executive Director Bill Maurer noted, “The Supreme Court did not hold that money is speech, but that money facilitates speech. If Congress can control the amount of money you can spend on speech, then it can ban any speech that carries beyond the sound of your own voice.”
Maurer continued, “The critics of Citizens United ultimately have a problem with the First Amendment and the fact that it prevents the government from placing caps on political speech. They want regulated speech, rather than a free marketplace of ideas. And for some reason, they trust the government to set and enforce strict limits on how much speech occurs in a debate about, of all things, who should govern us. This viewpoint is completely inconsistent with our nation’s history and flies in the face of long-established constitutional rights as well as limits on the power of government.”
IJ Attorney Paul Sherman added, “Absent from almost every attack on Citizens United is any description of what the case was actually about. At its core, Citizens United concerned a law that gave the federal government the power to fine or imprison people if they used money from a corporate or union treasury to pay for political speech. The government was literally asserting the power to ban the distribution of a political documentary and even pamphlets or books. Nothing could be more antithetical to the First Amendment.” Simpson concluded, “
In our society, the government has no place limiting certain voices because they might prove too influential. The Framers recognized that individuals, not the government, have the right to decide what to say and what messages to listen to. Those who believe in freedom should defend Citizens United. If we ignore freedom of speech, we will surely lose it.” For more information on Citizens United, Super PACs, and other campaign finance issues, visit IJ’s First Amendment blog, Congress Shall Make No Law, at www.makenolaw.org.
For more information, visit www.ij.org/FirstAmendment.
IJ’s Citizens United brief is available at www.ij.org/citizensunited.