In Defense of the First Amendment

The Supreme Court decision in Citizens United v. FEC was a victory for the First Amendment. It struck down the ban on corporate expenditures for federal elections. Now small businesses and large corporations, labor unions and nonprofits may spend general-treasury funds to influence the outcome of federal elections.

The case came about because the organization I lead, Citizens United, sought to promote and broadcast a documentary film. Citizens United is a nonprofit membership organization dedicated to restoring citizens’ control of government. Among other things, Citizens United produces films. We are widely known for having produced popular and timely documentaries including Celsius 41.11, Ronald Reagan: Rendezvous with Destiny, Perfect Valor, and Hype: the Obama Effect.

In 2007 Citizens United produced Hillary the Movie, which took an in-depth and critical look at the career of Hillary Clinton. Citizens United had planned to air the film on cable television via video-on-demand, but the broadcast was prohibited by the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold). The Act effectively criminalized political speech by nonprofit corporations. In light of the significant civil and criminal penalties that Citizens United, and I, might have faced for releasing Hillary the Movie, we filed suit against the FEC in order to vindicate our First Amendment rights.

Citizens United lost at the trial court, but two years later, the Supreme Court acknowledged our rights in its landmark five-to-four ruling that overturned two anomalies in previous Supreme Court decisions.

Unfortunately, many have seized on this decision in order to justify new legislation aimed at curtailing First Amendment rights. Senator Charles Schumer and Congressman Chris Van Hollen, for example, have introduced the Democracy is Strengthened by Casting Light On Spending in Elections (DISCLOSE ) Act. The deceptively named DISCLOSE Act will chill speech by imposing burdensome reporting and disclosure requirements on small businesses, corporations, and nonprofits, should they choose to exercise their speech rights. The Act will raise the cost of political speech by requiring the inclusion of lengthy disclaimers in television advertisements—disclaimers that could last for nearly half of a 30-second commercial. The Act bans political speech by entire classes of speakers, including businesses that choose to work with the federal government, and corporations that employ millions of American workers but are owned in the minority by a foreign investor.

Senator Schumer argues that this restriction of the First Amendment is necessary because

at a time when the public’s fears about the influence of special interests were already high, the Court’s decision [in Citizens United] stacks the deck against the average American even more.

“Our bill will follow the money,” he suggests:

In cases where corporations try to mask their activities through shadow groups, we drill down so that [the] ultimate funder of the expenditure is disclosed. If we don’t act quickly to confront this ruling, we will have let the Supreme Court predetermine the outcome of next November’s elections. It won’t be Republicans or Democrats; it will be Corporate America and other special interests.

Similarly, the drafters of the Fair Elections Now Act (FENA), a bill that had long been stalled in the House of Representatives, have redoubled their efforts to create a new public campaign-financing system. In an address to the Center for American Progress, Senator Richard Durbin, a FENA sponsor, said:

It takes a major scandal to create a major reform. . . . I don’t know that we’ve reached the level in the Senate or in the nation where people are going to demand this of
us. . . . But if they think that the Supreme Court has tipped the scales so dramatically that they don’t have a fighting chance any more, they may be open to this.

Both pieces of legislation seek to mute the impact of the Court’s restoration of the First Amendment right to political speech in Citizens United. Supporters of such legislation are at best making unfounded emotional appeals and at worst seeking to curtail our fundamental rights and freedoms. Lawrence Lessig urges us to move in the unfortunate direction of DISCLOSE and FENA.

Lessig, like Senators Schumer and Durbin, takes a cynical view of American democracy. He argues that Congress has been corrupted by a weakening of the “integrity of the institution . . . itself,” and that running for office, which necessitates raising substantial funds, results in politicians being too dependent on their donors. If Lessig is right, then “Barack ‘change the way Washington works’ Obama” must have been powerfully influenced, since he raised over $745 million to finance his campaign for the Presidency. (Obama was only able to raise such monumental sums by opting out of the public-financing system.)

Lessig says “the Supreme Court rendered the environment for this institutional corruption much worse.” In fact the Court did very nearly the opposite. Instead of permitting further ingratiation of special interests to politicians, the Court gave citizens another venue to let their voices be heard over the entrenched voices of Washington lobbyists. For the two decades since the Supreme Court erroneously decided Austin v. Michigan Chamber of Commerce, a large class of speakers had been silenced. As a result, the power of Washington lobbyists only grew. Lessig is worried about the power of large corporations and entrenched interests to abuse a corrupt system, but they are already spending billions of dollars lobbying Capitol Hill. In 2009 alone lobbying expenditures were $3.49 billion. The voices of powerful insiders were heard while the average American could not engage in such effective advocacy. Post-Citizens United, Americans may now band together and speak with one voice. Their ideas, viewpoints, and speech are now a part of the national debate.

The use of Citizens United to justify restrictions on liberty or the creation of radical new electoral and regulatory systems is unfortunate and inappropriate. Lessig, Schumer, and Durbin should be more mindful of the Constitution and the Bill of Rights as they advocate increased restrictions on free speech.