Everybody knows there is tons of money in politics. It is a natural consequence of the government regulating and controlling more parts of the economy. P.J. O'Rourke said, “When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.” I am not writing to defend or advocate a particular size and scope of government in general. There was a Supreme Court decision regarding political speech recently, FEC v. Citizens United.
Background
Citizens United produced “Hillary the Movie” that said she was a power-hungry viper unfit for the presidency. They wanted to make this available in theaters and through video on demand systems.
Analysis
You would think that they would be free to distribute this move however they saw fit in a free country. However, the Bipartisan Campaign Reform Act of 2002 did not permit “issue ads” 60 days before a general election and 30 days before a primary election. Issue ads simply take a position on some policy and typically associate a candidate for or against that policy. The law called for heavy fines and jail time for daring to speak out in a way that the law did not permit. So, basically this prohibited an organized group for people from making political statements.
In the recent case FEC v. Citizens United, the Supreme Court struck down major parts of BCPA. Anthony Kennedy in the majority opinion writes,
“Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship. “
While most have an idea that censorship is bad policy, he gives a great reason why we should not censor political speech, “speech is an essential mechanism of democracy, for it is means to hold officials accountable to the people.”
The content of the speech was not so much at issue as was when it was going to air and who sponsored it. I agree with the majority opinion that the identity of the speaker does not determine rights. Just because a group is too influential that is not a justification for withholding First Amendment rights.
Not everyone agreed with the outcome of this case, in fact it was a 5-4 decision. In a weekly radio address, President Obama said, “this ruling strikes at our democracy itself.” While some are worried about the outcome of this decision and perhaps justifiably so. However, a law cannot be upheld because it produced good outcomes or invalidated for bad outcomes. The Court rules on the law with the Constitution as the highest law in the land.
As a practical matter, political free speech is necessary for a functioning republic and it is exactly what was intended to be protected whether it's the ACLU arguing against the Patriot Act, the NRA advocating for less restrictions on guns, or a group advocating for or against abortion rights. And they need to be able to say whether candidate x is right or wrong on these policies whether they are a single person or an association. The life and death of the Republic depends on the freedom to make exactly this kind of speech.
The argument that we are treating corporations as people is a spurious distraction. We are simply saying that individuals are able to pool their resources and can speak in concert. Corporations are not people any more than your car or computer is a person, but the stockholders, directors, and others that control the corporation do have rights. Remember that while Hillary the Movie was funded by a corporation, people made the movie to express views that themselves and other people had. If we argue that corporations or other associations have no rights, do we then allow searches of corporate offices without warrant and cause or arbitrary expropriations without due process?
I believe that the dangers of this ruling are exaggerated. Big media big money speech is losing influence, not gaining influence. Grassroots efforts are being organized via Twitter. Bloggers and news aggregators run from the bottom up decide what is important, and I believe this trend will continue.
The solution to more corporate speech if that comes to pass is more speech from everyone rather than muzzling organized groups and chilling free speech.
