Press should defend Citizens United, 1st Amendment
In reading some of the coverage here in Alaska, it seems that some have a hard time figuring out how Republican Senate candidate Dan Sullivan can support the Citizens United decision while proposing he and Sen. Mark Begich make an agreement that worked to curb some Outside spending the only time it has been tried.
Citizens United vs. the Federal Election Commission was decided 5-4 by the U.S. Supreme Court in 2010. It overturned the bans on corporate-funded political speech within 30 and 60 days of primary and general elections under the McCain-Feingold bill passed in 2002; it also overturned a 1990 case that allowed limits on corporate spending on political speech.
Citizens United has been a rallying cry for the left ever since, kicked off by President Obama ragging on the Supreme Court justices to their faces at his State of the Union address a few days after the decision.
I called Sullivan’s challenge to Begich a “silly” move in this space last week because I find such “pledges” silly on general principle. Secondarily, it is silly because even if Sullivan is on the high ground it will do no good when the media will predictably dismiss or diminish the idea based on his proper support for the Citizens United decision.
The fact that many in the media (and certainly the whole Democratic party) cannot reconcile the two positions shows a fundamental lack of understanding about the superiority of agreements among private individuals and groups versus government mandates to address an issue such as Outside spending.
Such mandates inevitably encroach ever further onto our freedoms to the point where a government attorney actually argued before the Supreme Court in favor of a Constitutional authority to ban a wide spectrum of political speech beyond the sort of ubiquitous television ads running in Alaska.
That is where the Federal Election Commission came down on Citizens United.
Back in 2008, the nonprofit corporation Citizens United intended to use its general funds, which included some donations from for-profit corporations, to offer a negative movie about Hillary Clinton — creatively titled “Hillary: The Movie” — for free through video on demand service. Therefore the political speech was deemed prohibited under McCain-Feingold by the FEC and upheld in the D.C. Circuit Court.
On appeal to the Supreme Court, the government attorney, Deputy Solicitor General Malcolm Stewart, argued that the Constitution would allow for the prohibition of political speech across mediums including books if any of the funding came from corporations.
The McCain-Feingold campaign finance law being challenged only banned corporate spending for electioneering activity on “broadcast, cable and satellite,” and Stewart was asked by Justice Samuel Alito to answer the Citizens United argument “that there isn’t any constitutional difference between the distribution of this movie on video [on] demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?”
Stewart responded: “I think the Constitution would have permitted Congress to apply the electioneering communication[s] restrictions … to additional media as well.”
Justice Anthony Kennedy, who would be swing vote in deciding Citizens United and wrote the majority opinion, asked whether a non-media advocacy corporation could publish a book (media corporations are exempt from McCain-Feingold).
Stewart responded that, “Yes, [the government’s] position would be that [any] corporation could be required to use PAC funds rather than general treasury funds.”
Chief Justice John Roberts then asked, “And if they didn’t, you could ban it?” to which Stewart said, “If they didn’t, we could prohibit the publication of the book.”
Those who take it as conventional wisdom that the Citizens United decision is a bad thing should consider the chilling alternative argument advanced by the Obama Administration: that the Constitution allows the government to ban political speech in any medium based on the source of the funding.
Corporate-owned media (that would be all of it) enjoyed the grace of an exemption under McCain-Feingold. Yet the biggest media companies with the greatest reach are often of the multi-national, corporate conglomerate variety that are just as capable of pursuing interests that don’t reflect the public will.
The majority opinion in Citizens United rightly observed that, “the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment.”
No matter what the source of the funding for making “Hillary” available on demand, banning political speech that requires an independent decision to consume it is a drastic expansion of government authority without a compelling interest and demanded to be struck down. The fact that corporate funding alone gave the government grounds to ban political speech demanded those rules be struck down as well.
An administration that claims such authority and a Congress that would grant such power to the Executive should not find its advocates among an American press that is protected under the First Amendment for the purpose of holding the government accountable.
The systematic and illegal targeting of conservative groups by Obama’s IRS in the wake of the Citizens United decision is proof of the lengths an administration can and will go to silence its political opponents through the force of government.
And where have the supposed guardians of free speech been throughout this assault on the First Amendment?
Largely, they have gone along with the distortion of the free speech issues at the heart of Citizens United and looked the other way as the Obama Administration stonewalls the IRS investigation and makes the absurd claim that it has lost years worth of emails for a half-dozen agency employees and ringleader Lois Lerner.
Attacks by politicians on free speech are to be expected. It’s downright depressing when the people who claim to be the biggest fans of the First Amendment go along with it.
Andrew Jensen can be reached at firstname.lastname@example.org.