The U.S. Supreme Court decision clearing the way for corporations to contribute more freely to political campaigns has been maligned by many U.S. leaders as "un-American," writes guest columnist Bill Maurer. He argues that the court majority in the 5-4 ruling did the right thing under the First Amendment.
SEN. Charles Schumer, D-N.Y., called it “un-American.” Sen. Russ Feingold, D-Wis., said the American people “would pay dearly” for it. President Obama said that it “strikes at democracy itself” and that he could not think of “anything more devastating to the public interest.” The president went quickly before the cameras, pledging an immediate and “forceful bipartisan response.”
What was this threat to the Republic? What horrific occurrence caused these public servants such alarm?
It was a Supreme Court decision — Citizens United v. FEC — that said the government cannot ban speech by people it does not like.
Most Americans would assume that the First Amendment means the federal government cannot ban any speech. After all, the Constitution says “Congress shall make no law abridging the freedom of speech.” As Justice Hugo Black was fond of pointing out, “no law” means “no law.”
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Nevertheless, a bipartisan group of incumbents passed a law — McCain-Feingold — in 2002 that made it a felony for all corporations, including nonprofit advocacy corporations, to expressly advocate for the election or defeat of a federal candidate or to broadcast communications that refer to a candidate for federal office within 30 days of a primary election and 60 days of a general election. In other words, the government made it a crime for a group of citizens to come together and choose to speak about elections if they picked the wrong form for their association.
The government even said this law gave them the ability to ban books before elections. It is difficult to see how a law that gives the government the power to ban books is not one “abridging the freedom of speech.”
The proponents of McCain-Feingold said it was necessary because when people associated using the corporate form, they would be too persuasive. In other words, once corporations, comprised of individuals, could “interfere” with elections, Americans would simply march to whatever tune corporations called.
This is nonsense, of course. Sometimes corporate advertising is influential. Sometimes it is not. How many Americans watch the XFL while drinking the Pepsi Clear they brought home in their new Oldsmobile?
Of course, the law already permitted some corporations to use their products to try to influence political elections, and rightfully so. You are reading one of those products right now. It makes no sense to make it a crime for a small technology company to advocate for the election of a pro-intellectual-property politician, while The New York Times can urge the defeat or election of any candidate it chooses.
The panic felt by incumbents cannot be because they are concerned with corruption. After all, the majority of states do not bar independent expenditures by corporations and unions in campaigns. One of those states is Washington. Somehow we have managed to survive since 1889 with such an “un-American” system in place.
Corporations are each different. Some will see this decision as an opportunity to support pro-free-market politicians. Some will use it use it to support liberal politicians. And some will ignore politics completely and simply try to provide goods and services the public wants. This is because a corporation, like every association — a marriage, a neighborhood association or a nonprofit organization — is made up of people. It is the people who are now free to speak and to choose the form they believe is the most effective for disseminating their message.
This is America. We do not ban books. We do not make it a crime to speak because the speech may be too influential. With this decision, Americans will get more information, hear more debate, and learn more about their elections. With all due respect to Sen. Schumer, what could be more American than that?
Bill Maurer is the executive director of the Institute for Justice, Washington Chapter. IJ’s brief in Citizens United was cited in the U.S. Supreme Court majority opinion.