Senators Serve Up More Citizens United Myths

Arlington, Va.—Tomorrow (March 10, 2010) at 10 a.m. in the Dirksen Senate Office Building Room 226, the U.S. Senate Judiciary Committee will host a hearing on Citizens United v. FEC, the decision that expanded the free speech rights of people who join together as corporations and unions.  Will they celebrate this important First Amendment ruling?  Not likely, as many of them have criticized the Supreme Court for taking the words of the First Amendment—that “Congress shall make no law . . . abridging the freedom of speech”—seriously.  Here are some of the Senators’ biggest overstatements along with the Institute for Justice’s response.

Myth 1: Citizens United Will Let Corporations Buy Elections and Ruin Our Democracy

Senator Charles E. Schumer (D-N.Y.):  “The bottom line is, the Supreme Court has just predetermined the winners of next November’s election.  It won’t be the Republican or the Democrats and it won’t be the American people; it will be Corporate America.”

Senate Majority Whip Dick Durbin (D-Ill.):  “In 2008, millions of individual voices calling for change became a chorus that simply could not be silenced.  Two years later, a Supreme Court decision could render us mute. . . .  The Citizens United case gives corporations a license to hijack democracy.”

Institute for Justice Senior Attorney Bert Gall said, “Apparently, quite a few of our representatives have absolute contempt for their constituents.  These statements rest on the notion that if corporations are allowed to speak during elections, the voters will be unable to think for themselves.  But that paternalism runs directly contrary to the First Amendment, which assumes that citizens can think and judge the truth for themselves.  The evidence backs up that assumption.  Before the Supreme Court ruled in Citizens United, 26 states let corporations make independent expenditures, but they were neither hotbeds of corruption nor did corporations manage to buy their elections.  Moreover, corporate advertising in the commercial realm hasn’t led to uniformity there, so it’s ridiculous to argue that it will lead to uniformity in the political realm.  But if politicians are concerned about that, they are free to compete in the marketplace of ideas like everyone else.”

Myth 2: Citizens United Is Judicial Activism That Overturned 100 Years of Judicial Precedents

Senator Arlen Specter (D-Pa.):  “Today’s Court decision rejects 100 years of precedent and our democratic principles.  To call corporate money free speech is judicial activism.”

Senator Russ Feingold (D-Wis.):  “In its ruling in the case of Citizens United v. FEC, the Supreme Court has undone protections against corporate power that stood for more than a century.”

Senator Ben Cardin (D-Md.):  “A very activist Supreme Court has tipped the scales of justice further against American voters today, adding to the great imbalance that currently exists in U.S. campaigns.”

IJ Staff Attorney Paul Sherman said, “Citizens United was a straightforward application of basic First Amendment principles.  The First Amendment protects both the right to speak and the right to associate, and the government cannot compel any association of people—even corporations or unions—to surrender those rights.  There is nothing ‘activist’ about enforcing the clear commands of the Constitution.  Indeed, protecting those rights from government infringement is the judiciary’s highest purpose.”

Sherman said, “Nor is it true that Citizens United reversed a century of constitutional law, as Senators Specter and Feingold claim.  It’s true that Congress first prevented corporations from spending money to advocate the election or defeat of candidates in 1947, but the ban was controversial even then.  In fact, President Truman called it a ‘dangerous intrusion on free speech.’  And the Supreme Court did not consider whether a ban on corporate independent speech was constitutional until 1990.  There, the Supreme Court upheld the restrictions on a narrow 5-4 vote, but its reasoning was hardly a bedrock of constitutional law.  That decision was based on a rationale—that the government can ‘level the playing field’ by reducing the ability of some groups to speak effectively—that the Court had consistently rejected in earlier decisions.  Citizens United was not ‘activist’ but a long overdue correction to an error the Court had made 20 years before.  Citizens United followed a long tradition of overruling precedents—such as Plessy v. Ferguson or Bowers v. Hardwick, for example—that wrongly diminished, rather than protected, constitutional rights.”

Myth 3: Corporations Are Not People So They Have No Free Speech Rights

    
Senator Chairman Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee:  “The five Justices in the activist conservative bloc reached out to grant corporations rights that were once were reserved for individual Americans.  This divisive decision puts the special interests of big oil, banks and insurance companies ahead of the interests of the American people.” 

IJ Senior Attorney Steve Simpson said, “True, corporations are not people.  But they are made up of people, like every other association—from partnerships to marriages to neighborhood groups to nonprofits and all the way up to The New York Times.  If individuals have the right to speak, then they have the right to join with others to speak, whether they join with one person or 10,000 or as a corporation or as a newspaper.  Associating with others is a very effective means of speaking out, just as it is an effective means of doing virtually everything else.  Take away cooperative effort and the money necessary to fund it, and The New York Times would be nothing more than a pamphlet being published in someone’s garage.”

Simpson said, “Advocates of campaign finance ‘reform’ don’t just want to silence corporations, they want to silence anyone who can speak effectively to a large audience.  They oppose any group of people, even those not organized as corporations or unions, teaming up to spend their own money in whatever amount they choose in elections.  SpeechNow.org v. FEC, a case currently pending in the U.S. Court of Appeals for the D.C. Circuit, demonstrates that fact.  SpeechNow.org is an unincorporated association of individuals who want to spend their own money on their own speech advocating the election or defeat of candidates.  Both the FEC and so-called reform groups argue that SpeechNow.org should be treated exactly as corporations were treated before Citizens United.  This shows the end game for campaign finance reform is not the control of corporations, or even corruption; it is the control of speech.”

For more information, visit www.ij.org/FirstAmendment.

IJ’s Citizens United brief is available at www.ij.org/citizensunited.