Citizens United: A Blow to Government Censorship

by Austin Raynor

The Supreme Court’s decision in Citizens United v. Federal Election Commission elicited a level of vitriol from Democrats that is especially surprising when taken in context of the fact that, historically, liberals have been stalwart defenders of free speech. Representative Chris Van Hollen (D., Md.), said, “This will allow the biggest corporations in the United States to engage in the buying and selling of elections.”

Senator Charles Schumer (D., N.Y.) histrionically proclaimed, “This is poisonous to our democracy.” And, consistent with the populist line he has taken of late, President Obama referred to the decision as “a major victory for big oil, Wall Street banks, health insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” What he failed to mention was that it was also a “major victory” for free speech.

The 5-4 decision struck down provisions of the McCain-Feingold legislation that prohibited “electioneering communications” (advocacy ads) within thirty days of a primary election and sixty days of a general election. It did not overturn bans on direct contributions to candidates or the requirement that sponsors of advertisements disclose their involvement.

The basic outcome of the ruling is that corporations, or simply groups of two or more people, may seek to influence the outcome of elections by engaging in political speech. Although media corporations were already exempt from the restrictions (the New York Times, unfettered by government censorship, called the ruling a “blow to democracy”), other corporations and even nonprofits such as the NRA and the Sierra Club are now free to participate in the political process.

Previously, McCain-Feingold had created obviously unjust situations in which, for instance, the New York Times could run a pro-Obama editorial while the NRA was not allowed to buy an anti-Obama ad in that very newspaper. In 2006 the Sierra Club was fined $28,000 by the FEC for distributing pamphlets evaluating the environmental stances of various candidates. As the court rightly noted, this was nothing more than an egregious violation of First Amendment rights.

The left, however, once a staunch defender of civil liberties, has sacrificed even this principled streak to its populist, anti-business pandering. The change in the left’s stance is highlighted by the majority opinion itself, in which Justice Kennedy quotes from three of the great Supreme Court liberals of the 20th century (Douglas, Black, and Warren): “Under our Constitution it is We The People who are sovereign.

“The people determine through their votes the destiny of the nation. It is therefore important—vitally important—that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that people have access to the views of every group in the community.”

McCain-Feingold was nothing more than blatant government censorship of political speech. To illustrate: in the first session of oral arguments in Citizens United, Justice Alito asked the Solicitor General, Malcolm Stewart, if the legislation could be used to prevent publishing houses (i.e., corporations) from publishing books. Stewart answered in the affirmative. Rightly surprised, Alito replied, “That’s pretty incredible.”

In ringing language Kennedy assailed this shameless federal power-grab: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. That is unlawful. The First Amendment confirms the freedom to think for ourselves.”

The essential paternalism of the legislation should be insulting to Americans: it reveals the government’s mistrust of citizens’ ability to think for themselves and responsibly inform themselves of election-relevant information. It is not the government’s job to decide which information is important for us to hear and which is not. Government control of the avenues of information has no acceptable role in a republic.

Furthermore, the rhetoric on the part of the bill's supporters concerning corruption and fears of corporations “buying and selling elections” is merely an attempt to conceal the fact that this bill was primarily an incumbent-protection act. By limiting the amount that an individual may donate to a particular candidate, the bill aids incumbents, who, known better by the public and with stronger personal networks, have an easier time accruing significant sums through small donations from a large number of people. Challengers, on the other hand, have in the past relied typically on big donations from only a handful of individuals.

The advertising prohibitions of the bill further benefited incumbents by restricting challengers’ ability to expose the weaknesses of better known candidates (i.e., incumbents). By prohibiting advertising in the most crucial time period prior to an election, the bill basically ensured that incumbents would maintain their advantages in terms of public awareness and name recognition.

In striking down such unconstitutional and misguided legislation, the Court fulfilled its duty of protecting constitutionally guaranteed liberties threatened by the tyranny of the majority. The First Amendment is intended to foster an atmosphere of open intellectual and political debate. The McCain-Feingold legislation directly undermined these ideals. As Justice Kennedy rightly asserted, “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”