Tuesday, January 24, 2012

The War on Political Free Speech

Source: Bradley A. Smith via WSJ Opinion

Two years ago the Supreme Court upheld the right of an incorporated
nonprofit organization to distribute, air and advertise a turgid
documentary about Hillary Clinton called, appropriately enough, "Hillary:
The Movie." From this seemingly innocuous and obvious First Amendment
decision has sprung a campaign of disinformation and alarmism rarely seen
in American politics.

From the start, reaction to Citizens United v. Federal Election
has bordered on the hysterical. Rep. Alan Grayson (D., Fla.)
called it the "worst decision since Dred Scott"—the 1857 decision holding
that slaves could never become citizens. In his State of the Union message,
within days of the ruling, President Obama lectured Supreme Court justices
in attendance that they had "reversed a century of law" to allow "foreign
companies to spend without limit in our elections." Neither statement was

In 1907, Congress passed a law—the Tillman Act, named for segregationist
South Carolina Sen. "Pitchfork" Ben Tillman—prohibiting corporations from
contributing to political campaigns. This law was extended to unions in
1943, and in 1947 a provision of the Taft-Hartley Act extended the
prohibition to cover spending done independently of campaigns. 

Citizens United overturned only the 1947 independent-spending
restriction, not the earlier prohibition on corporate contributions to
campaigns. Not until 1990 did the Supreme Court uphold a prohibition on
corporate political expenditures independent of campaigns. Citizens United,
therefore, overturned not "a century of law," but a precedent 20 years old.

Moreover, the court specifically noted that it was not ruling on the
viability of the prohibition on foreign political spending—and earlier this
month it summarily upheld a lower-court ruling finding that the prohibition
on foreign political expenditures was constitutional.

Meanwhile, regardless of the 1947 federal law, the majority of
states—including many of the best governed, scandal-free states such as
Virginia, Utah, Oregon, Florida and Washington—have long allowed unlimited
corporate spending in state elections.

None of this has slowed the decision's critics. Then-Senate Judiciary
Committee Chairman Patrick Leahy (D., Vt.) began a committee hearing in
September 2010 by arguing that in his small state, "it's easy to imagine
corporate interests flooding the airwaves. . . . The rights of Vermonters .
. . to be heard should not be undercut by corporate spending." Vermont has
never prohibited corporate spending in state elections, yet it survived
with its citizens' rights intact.

Mr. Leahy, at least, limited himself to foolish remarks. His junior
colleague, Bernie Sanders (I., Vt.), proposed a constitutional amendment
last month that would not only prohibit corporations from speaking on
political elections, but would prohibit any group of citizens organized "to
promote business interests" from speaking about elections. Presumably, this
could extend to everyone from the Heritage Foundation and the National
Federation of Independent Business to the Republican National Committee and
local citizens organizing against a sales-tax referendum.

Because most newspapers are incorporated, UCLA law Prof. Eugene Volokh
believes that the Sanders Amendment and a companion bill in the House would
even authorize the government to prohibit newspaper editorials about

A national coalition, Move to Amend, seeks a constitutional amendment
providing that "artificial entities, such as corporations, limited
liability companies, and other entities . . . shall have no rights." The
coalition seems oblivious to the fact that this would apply to campaign
committees and nonprofits such as the NAACP and the Sierra Club, and would
allow legislatures to make the advocacy of Move to Amend's goals illegal
for most of the coalition's "endorsing organizations" (which are themselves

These amendments are based on the leftist cry that "corporations aren't
people," but the Supreme Court has never said that they are. "Corporate
personhood" is a legal fiction that allows natural people to sue and to be
sued, to own and transfer property, and to carry on their affairs as a
group. Corporations have rights because the people who own them have rights.

As Chief Justice John Marshall explained nearly 200 years ago in Dartmouth
College v. Woodward, corporations allow "a perpetual succession of many
persons . . . to manage [their] affairs and to hold property without the
perplexing intricacies, the hazardous and endless necessity, of perpetual
conveyances for the purpose of transmitting it from hand to hand." The
legal concept of a corporate "person" has been with the United States since
its founding, recognized in literally hundreds of Supreme Court decisions.

If Move to Amend got its way, police could search businesses, unions, clubs
and nonprofits at will, without a warrant. The state could seize business
property without due process or just compensation, leaving pension funds
and individual shareholders holding worthless stock. Partnerships and
corporations would have no legal rights in court. Incorporated churches
would have no right of worship.

The absurdity should be obvious. Yet city councils around the country,
including New York and Los Angeles, have passed resolutions calling for
such an amendment.

Super PACs have become the latest villain du jour of the anti-speech crowd,
which plays off the general public distaste for the political rancor that
surfaces every election year. Critics including Mr. Sanders say that Super
PACs don't disclose their donors and rely on "secret" money. This is simply
not true. Super PACs, like the traditional political action committees that
have existed for decades, disclose all expenditures and all donors over

There are organizations that spend on politics but don't disclose their
donors: traditional nonprofits such as the NAACP, the NRA and Public
Citizen. These groups have never had to disclose their donors—and the
Supreme Court, over 50 years ago, upheld their right to keep supporters
anonymous. But reformers intentionally seek to blur the lines between these
traditional groups and Super PACs in order to whip up criticism of Citizens

The goal of this misinformation is clear. Reformers, who sit mainly on the
political left, and their Democratic Party allies hope to silence voices
that they perceive to be hostile to their political interests.

Two years after Citizens United, American democracy seems as robust as
ever. This may be what its critics fear most—a vibrant debate that they
cannot control and fear they will lose.

The U.S. government argued in Citizens United that it had the right to
ban the publication of books, pamphlets and movies that advocated the
election or defeat of a candidate if they were produced or distributed by
unions or corporations, such as Random House, Barnes & Noble and
DreamWorks. That position is the one that deserves scorn. Fortunately, no
new amendment was needed to defeat it—only the First Amendment and a
Supreme Court willing to uphold it.

Mr. Smith, who served as commissioner of the Federal Election Commission
from 2000 to 2005, is chairman of the Center for Competitive Politics and
professor of law at Capital University.

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