The Supreme Court’s action in striking down the worst censorship provision of McCain-Feingold restores vital free speech protection in America. The First Amendment does not allow the government to silence its critics, and Thursday’s decision would make our Founding Fathers applaud -- they built this country out of a revolution founded upon a critique of oppressive government. But fast forward to 2010, this week, instead of applauding the Supreme Court’s ruling, America’s current president is responding by issuing an ominous threat against our highest court.
On January 21, the U.S. Supreme Court handed down its decision in Citizens United v. FEC. At issue was a key part of the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold, that made it a federal felony—punishable by five years in prison—for a corporation to use any of its funds to criticize a candidate for federal office within thirty days of a primary election or sixty days of a November general election.
The group Citizens United made a documentary about Hillary Clinton during the 2008 campaign. The Federal Election Commission did not allow it to be distributed, and David Bossie, president of Citizens United, decided to fight back.
The case went to the Supreme Court, where former U.S. Solicitor General Ted Olson—a living legend among Supreme Court lawyers—fought it out against Barack Obama’s Justice Department. During argument, the Obama administration’s lawyer, Solicitor General Elena Kagan, made extravagant claims about the extent to which government can censor its critics, outlawing books, movies, and other methods of informing the public. Olson pushed back hard, pointing to the terrible power that this part of BCRA gives the government against private citizens banding together to speak out during election season.
The Supreme Court agreed that such power is frightening. In an opinion written by moderate Justice Anthony Kennedy, he noted that the Court upheld regulations decades ago on corporate speech, on the theory that corporations could amass vast sums of money to drown out ordinary citizens, distorting public debate.
On Thursday, the Court overruled that earlier case and also part of a 2003 case involving BCRA, finding the earlier anti-distortion rationale to be “unconvincing and insufficient” to justify government censorship of political speech. Instead, the Court noted that ordinary people often need to pool their money into an organization they support, to use those pooled funds to get their message out about the issues they care about when elections are approaching. Rather than drown out the little guy, this option allows groups, be they Citizens United, the National Rifle Association, or the Family Research Council, to be a megaphone for the little guy, informing the voters of what’s at stake.
The Court’s opinion went on to note that the government’s theory of being able to censor organizations that speak to the public simply because that organization is a corporation with the ability to accumulate money would enable the government to go after the media. Every major press outlet is a corporation, and all have vast sums of money. The government’s argument could be used to justify censorship of the press. When that happened, the First Amendment dies.
The far left has already taken up the cry that this decision somehow undermines democracy, with Senator Chuck Schumer calling it “un-American.”
The White House itself is engaging in an unseemly Chicken Little routine, with President Obama himself crying that the Court, “has given a green light to a new stampede of special interest money in our politics. It’s a major victory for big oil, Wall Street banks, health insurance companies,” etc.
It’s nothing short of Orwellian that many on the left argue that the First Amendment protects pornography and obscenity, but not the right to freely speak out about candidates for the presidency of the United States. History is clear that the Founding Fathers’ purpose in writing the Free Speech Clause was to ensure that people—either individually or as a group (which includes corporations)—have the right to share and spread their ideas and opinions of the government, its policies and its candidates for office.
President Obama’s hypocrisy here is appalling. In the midst of the grossest and sleaziest politics that this country has ever seen over the past weeks’ health care shenanigans, with U.S. senators being bought off, labor unions getting a free ride on all of our backs, and special deals cut for every special interest that backs this president, it’s astounding that he has the gall to criticize anyone for “special interest” politics. The worst aspects of corrupt Chicago politics are oozing out of this White House, and anyone can see who is enjoying a “big victory” these days.
Obama then ends with a warning, saying that he will go to Congress to craft a “forceful response to this decision.”
That sounds like a threat. And every American should be worried when the president of the United States starts threatening the Supreme Court.
And they should be especially worried when all the Court is doing is protecting one of our most sacred rights. The Supreme Court says it best in its majority opinion: “Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime.”
In other words, if there is one place on earth where people should be free to join together and pool their resources to inform their fellow citizens about public issues, that place is America. And if there’s one time where it’s most critical to inform our fellow citizens, it’s in the days leading up to an election, where we as a people must choose who will wield the power to rule over us.
Citizens United v. FEC is a “big victory” alright. It’s a tremendous victory for average Americans, restoring their First Amendment rights to join together to be heard. Barack Obama may be fuming, but our Founding Fathers are smiling.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union. He is a frequent contributor to the Fox Forum.