No Means No

February 5th, 2010

By Brianna Aubin

“Congress shall make no law… abridging the freedom of speech….”

You’d think that would be a pretty simple statement to understand. No means no, and it doesn’t matter what sort of special case you think you’ve found or what great excuse you’ve managed to dredge up, you don’t get to legislate against free speech.  Period.

Unfortunately, our elected officials seem to be having more trouble understanding this than is healthy for our rights and freedoms as Americans.  Some of them more than others, of course, judging by President Obama’s little snippet from the State of The Union:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.  Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.

Huh.  That’s funny.  I thought this guy was supposed to be a constitutional scholar.  You’d think after ten years of teaching constitutional law, he’d manage to be up on one of the most fundamental parts of the document.

Then again, judging by the time that Mr. Obama called the Constitution a “fundamentally flawed” document, he probably doesn’t have many qualms about changing or ignoring the thing provided he thinks the cause is right.

So the ruling of the Supreme Court in Citizens United v. Federal Election Commission has supposedly “opened the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”  Okay, Mr. Obama, let us test your assertion.

First, let’s look at the restrictions the Supreme Court struck down in the first place:

Corporations and unions are not allowed to use their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.  An electioneering communication is “any broadcast, cable or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary election and that is “publicly distributed” which in “the case of a candidate for nomination for President… means “that the communication “can be received by 50,000 or more persons in a State where a primary election… is being held within 30 days.  Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneering communications purposes.” (Citizens United v. Federal Election Commission, p. 1)

Wow, scary.  Now let’s look at the objections raised by those who disagree with the Supreme Court ruling.  They are, in order:

  • The corporations will now be able to flood the airwaves with ads that favor their interests.
  • Rich corporations will be able to corrupt the political process in their favor through indiscriminate spending.
  • Corporations shouldn’t have free speech rights meant for individuals.
  • Foreign corporations will be able to play a role in our elections, undermining our democratic processes.
  • It’s overturned a century of precedent limiting corporate spending in elections.
  • It will open the door to political bribery and corruption.
  • People who don’t get corporate support won’t be able to compete.
  • It’s unfair to shareholders that might disagree with any views these ads might espouse.
  • It was an improper example of judicial activism.

Okay, did I miss any?  Now let’s go through them one by one.

  • The corporations will now be able to flood the airwaves with ads that favor their interests.

So what?  Nobody ordered you to listen to them.  You have a problem with ads?  Turn off the TV.  Nobody is making you watch the boob tube, and nobody is hypnotizing you in the process so that you will walk out of your living room zombified to do exactly as the last political ad you watched on television prior to the election told you to.  You don’t like political ads?  Don’t watch them.

  • Rich corporations will be able to corrupt the political process in their favor through indiscriminate spending.

Believe it or not, most corporations are neither particularly rich nor particularly large.  Nor are there so few corporations out there that there would be no possibility of the speech of one corporation being able to check the speech of another.  For example, here are a few statistics quoted in the majority opinion which quickly dispel this illusion:

  • 5.8 million for-profit corporations filed tax returns in 2006
  • 96% of the 3 million businesses that belong to the U.S. Chamber of Commerce are rather small; they are listed as having <100 employees
  • more than 75% of corporations whose income is taxed under federal law have less than $1 million in receipts per year.

So much for “the Government’s argument that the statute is justified on the ground that it prevents the distorting effects of immense aggregations of wealth.  It is not even aimed at amassed wealth” (Citizens United v. Federal Election Commission, p. 38).  As for those relatively few corporations that do have huge amounts of amassed wealth… how is that any different from the fact that there are a few individuals with large amounts of amassed wealth who have more opportunity to speak and influence elections than you or I do?  Shall we also restrict their speech in the name of preventing so-called “distortions?”  If your argument is that the rich have an unfair ability to say what they think, then how do you define “rich” and where do you draw the line in restricting them?  (Warning to those who are determined to try: slippery slope ahead — go beyond this point at your own risk.)

  • Corporations shouldn’t have free speech rights meant for individuals.

And what are corporations, except for an “imaginary” organization drawn up by a group of individuals for legal purposes?  For example, I read a publication called The Intellectual Activist (yes, I’m one of those people).  This publication is almost entirely written by one man, Robert Tracinski.  However, the publication is actually put out by a corporation, called Tracinski Publishing Company.  Does this mean that Robert Tracinski is not allowed to advocate for or against candidates in his publication The Intellectual Activist, even though what is really happening is one person spreading his views to people who have already voluntarily agreed to listen to him?  People who say that groups shouldn’t have the powers of free speech because they were meant for individuals completely miss the point that there is no such thing as a group which is not composed of individuals; they conveniently forget the illogic of cutting down the forest for the sake of the trees.  Incidentally, can you point out the part in the First Amendment that says the right to speak is reserved only to individuals acting in an individual capacity?  Because I’ve been looking really hard for it, but funny thing, I haven’t managed to find it yet.

  • Foreign corporations will be able to play a role in our elections, undermining our democratic processes.

Dead false.  This case was not about foreign corporations at all, and it did not lift restrictions on the ability of foreign nationals to influence the election process.  Under the rules currently in place, only U.S. subsidiaries of foreign companies are allowed to play a role in the American electoral process, and only with money made in the U.S.  Foreign nationals are still prohibited from making “a contribution or donation of money or anything of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state or local election” under 2 U.S.C. Section 441e, which was not at issue in the case.  Foreign corporations are also prohibited, under 2 U.S.C. Section 441e, from making any contribution or donation to any committee of any political party, and they are prohibited from making any “expenditure, independent expenditure, or disbursement for an electioneering communication … .”

  • It’s overturned a century of precedent limiting corporate spending in elections.

Also false.  What was actually overturned was a 1990 decision in Austin vs. Michigan Chamber of Commerce, which held that prohibiting corporations from using treasury money to support or oppose candidates did not violate the First or Fourteenth Amendment.  Upheld, however, was the case of Buckley v. Valeo, which ruled in 1976 that while limits on direct campaign contributions were constitutional, spending money to influence elections was a form of constitutionally protected free speech and as such was protected under the First Amendment.  Also upheld was the case of First National Bank of Boston v. Bellotti, which ruled in 1978 that corporations had a First Amendment right to make contributions in order to attempt to influence political processes.

  • It will open the door to political bribery and corruption.

Unlikely at best.  For one thing, the disclosure laws have not changed.  Corporations engaging in political advertising still have to say who they are in the ads they run.  For another, the original law that was struck down did not forbid corporations from purchasing ads for political candidates.  It forbade corporations from contributing ads for political candidates within 30 days of an election without forming a PAC.  Additionally, the laws on direct contribution caps, which could actually cause corruption, were not challenged by this case.

  • People who don’t get corporate support won’t be able to compete.

Again, the problem is not that corporations who were previously not allowed to run ads are now allowed to do so.  Corporations were already allowed to run ads for candidates.  They just weren’t allowed to do it within 30 days of an election without forming a PAC.  Can anyone then honestly suggest that politicians will become any more or less vulnerable to vagaries of corporate support just because corporations are now allowed to run ads within 30 days of an election without forming a PAC?  Additionally, can anyone seriously suggest that of the five million corporations on U.S. soil, that any politician anywhere is at risk of not being able to garner any corporate support at all?

  • It’s unfair to shareholders that might disagree with any views these ads might espouse.

Again, the issue at stake was never whether corporations had a right to air their views, but whether corporations had a right to air their views within 30 days of an election without forming a PAC.  This means that the possibility of a corporation going against the political views of one or more of its shareholders was present prior to Citizens United v. Federal Election Commission and therefore not at stake in this case.  Additionally the shareholders already have a very simple means of protecting themselves from corporations issuing speech with which they disagree: don’t buy that stock.  Contrary to popular belief, corporations do not have the ability to punish you for refusing to deal with them or listen to them.

  • It was an improper example of judicial activism.

Well, let’s see what the Constition has to say about it.  Section 2, Article 3:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution….”  This means that when the Court upheld corporations’ (aka groups of individuals) right to free speech in the name of the First Amendment, they were doing exactly what they were supposed to be doing according to the document which gives them their power: examining the laws of this country for their legality and applicability under the supreme law of the land, the Constitution.

***

So now that we’ve dispelled all of the phony objections that have been drawn up in order to give the objecters the veneer of legitimacy and their opponents the illusion that they are engaging in democratic debate about honest concerns, let’s move on to the real reasons behind the objections.  What’s really behind all of this is the fear of the liberal left (it’s mostly moderate Republicans and the people from the left, aka progressives, who are going crazy over this) that if corporations are allowed to run ads, they will then proceed to run ads.  Worse, those ads might espouse views different from the ones held by the liberal left.  Worst of all, people might decide that those views make more sense than those of the left and act accordingly.

Horrors.

The other main, unspoken assumption held by the liberal left is that people are just stupid.  The reason I say this is because what a fear of people running campaign ads really says about the people who hold that fear is that they think humanity as a whole is just this big, stupid mass who will listen to anything, believe anything, and who when they go out to vote, will simply fill in the ballot with the content of whatever political ad they heard last.  Well, sorry if you find this next bit insulting, but I firmly believe that a people’s view of humanity is shaped by the way they view themselves.  Which means that if your fundamental view of humanity is as a foolish, impressionable mass that will turn into a bunch of sleepwalking zombies the minute they see an ad that says something you disagree with.  That really doesn’t say much in my eyes for your own mental abilities or capability for independent thought.  I also don’t think much of your views if you see them as something so fragile and easily shaken that a few corporate ads could dispel all cases for them in men’s minds.  Because that’s really what the liberal left is afraid of.  They know that in a world where there is free competition of ideas, only the best ideas will survive the test of time — and they’re aware on some level that under such a test, their ideas are unlikely to make the final cut.

In closing, I’d like to make one final point.  What this case was about was not judicial activism or opening the floodgates to special interests or anything else that was discussed and refuted earlier.  It was about the right of every individual in America to speak their minds.  In the words of David Bossie, the president of Citizens United:

Our argument in the case wasn’t complicated.  It was about freedom, and it ended up hinging on a very simple question: If the FEC is comfortable banning political films, like Citizens United’s Hillary: The Movie, around election time, would it also be fine with banning political books financed by corporations? The Justice Department’s attorney answered yes, the government did have the power to prohibit the publication of a book. When they admitted that, everything changed.

I think that answer sent a chill through the Court.  It was that moment that was a catalyst for us, and gave us the opportunity to win on much bigger constitutional grounds than we anticipated. It became apparent that the government believed that they could ban anything: movies, books, pamphlets, the Kindle, you name it. It was a shocking revelation.

No means no.  It’s about time someone in our government figured that out.

Citizens United v. Federal Election Commission: Syllabus
Citizens United v. Federal Election Commission: Opinion


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3 Responses to “No Means No”



  1. Brian Bagent |

    I threw up in my mouth a little bit on the part about encouraging corruption. Is he serious? A man that was 100% made by the Daly machine in Chicago is worried about a corrupt political process? This president may be the most duplicitous thug since Andrew Johnson, and I happened to believe that the other three most corrupt presidents were LBJ, Nixon, and Clinton.

    “When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.” — P.J. O’Rourke


  2. Tom |

    Excellent article, Brianna. Well-researched, well-written, thoughtful, and informative.

    On the issue of free speech in general, in order for speech to be free it must be absolutely free. The only acceptable limitations are circumstances when speech directly harms other individuals — e.g., shouting “fire” in a crowded theater, inciting to riot, etc. Unless the most objectionable speech imaginable isn’t protected, then free speech doesn’t exist. Too often, attempted infringements of speech are undertaken by individuals or groups who don’t want anyone to be able to hear speech that they disagree with. The classic solution you refer to is always a valid counterargument to limitations on speech — don’t listen to the speaker, turn off your TV, don’t read that particular document, don’t go to that webpage, etc.

    I don’t particularly like the concept of corporations being treated as individuals. I understand why it’s done, but the further one looks into the details, the less sense it makes. There are too many examples of exceptions, such as limited liability. For purposes like campaign contributions, however, your argument makes sense for any group of individual citizens acting in concert. They should be able to act politically as an identified group, without limitations on their freedom of speech.


  3. Terri |

    Brian–I totally agree with you on LBJ and Johnson


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