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Citizens United, For and Against Free Speech

When Republicans controlled Congress in the 1990s, liberals fought hard to block a series of constitutional amendments demanded by conservatives, including provisions allowing official school prayer and prohibiting flag burning that would have effectively repealed core First Amendment freedoms.  These days, with Democrats at least nominally in control, some prominent liberals are on the other side, fighting to repeal the First Amendment--in the wake of the Citizens United decision.  Advocacy groups (like MoveOn and People for the American Way) and prominent Democrats (including Senators John Kerry and Chris Dodd) have announced their support for a constitutional amendment depriving corporations of political speech rights.   
   
Dodd and Kerry have strong civil liberties records, and no one can accuse them of not understanding or respecting First Amendment freedoms, in general.  But a lot of liberal Democrats and progressives have reacted to Citizens United with predictable partisan fury and fear, considering the political benefits it's expected to confer upon Republicans.  It seems safe to say they will not succeed in passing a constitutional amendment, which requires a 2/3 vote in the House and Senate and will not garner unanimous Democratic support, much less the support of Republicans. (It's worth noting, and cheering, campaign finance reform champion Russ Feingold's opposition to a constitutional amendment.)  
   
Legislative proposals limiting or clarifying corporate speech rights will and should be taken seriously (even though the prospects of passing any major legislation about anything seem slim).  Senator Sherrod Brown of Ohio has introduced a bill that would require shareholder approval of corporate political expenditures, disclosure of sponsorship, and a ban on electioneering by foreign corporations.  Bills barring federal contractors from electioneering also seem likely.  The Court ruled out none of these provisions in Citizens United, and reasonable civil libertarians will differ over the reasonableness of the burdens they impose on corporate speech.  But a reasoned debate about appropriate, constitutional regulations of corporate electioneering requires correcting misconceptions about what the Citizens United ruling entailed; it also requires acknowledging the relationship between money and speech.  

The Citizens United ruling did not (contrary to popular belief) overturn a century old ban on direct corporate contributions to political candidates.  It overturned a ban on corporate or union speech that criticized candidates within a 60-day period before a general election and a 30 day period before a primary.  The ban applied not just to big, bad corporations but to not for profit groups, like Citizens United, which had produced a movie highly critical of Hillary Clinton.  (Former ACLU Executive Director Ira Glasser explains it all for you here at the Huffington Post.)  In other words, the Court held that Congress could not criminalize criticism of congressional candidates in the month or two before elections, when voters are beginning to pay attention to campaigns.
   
It's easy to understand why opponents of campaign finance restrictions have long derided them as incumbent protection measures.  What's hard is rationalizing support for such reform: as Floyd Abrams said, in a Wall Street Journal interview: "You cannot be serious!  We're talking about the First Amendment here, and we're being told that an extremely vituperative expression of disdain for a candidate for president is criminal in America?"
   
How do supporters of reform respond, "Money isn't speech," they usually declare, as if saying it could make it so.  "Money is not speech," Chris Dodd said, announcing his intention to introduce a constitutional amendment nullifying Citizens United.  But, as a practical matter, money is speech: that's why NPR periodically begs us for it; that's why newspapers are endangered by the decline of print advertising and why someone who owns a TV network is more influential than a street corner pamphleteer.  As I've said before, if Congress passed a law limiting the amount of money we could spend annually on books or newspapers, we would probably not say, "Never mind.  Money isn't speech." It's a fact of life, however lamentable, that money enables the exercise of constitutional rights, as liberal proponents of campaign finance restrictions implicitly acknowledge when they support medicaid funding for abortions.  Few reproductive choice advocates would insist that money isn't choice.
   
But right and left, populist anger at corporate electioneering will not be easily assuaged; progressive support for outlawing corporate speech poses particular problems for free speech advocates at the increasingly liberal and decreasingly libertarian ACLU, which has long opposed bans on electioneering, as well as direct campaign contributions.  ("Limitation on contributions or expenditures made by individuals or organizations for the purpose of advocating causes or candidates in the public forum impinge directly on freedom of speech and association," current ACLU policy states.)  But, as the New York Sun reported last month, only a few days after the Court ruled in Citizens United, the ACLU national board met to debate its opposition to campaign finance restrictions.  
   
Reversing the organization's position on campaign financing immediately after it was vindicated by the Supreme Court could surely be a public relations disaster.  "There will be some people who think you're a little fickle for changing your policy three days after one of the greatest victories in this organization," Floyd Abrams pointed out; and the board put off a decision on the policy.  In the meantime, however, the ACLU is apparently laying low, keeping its opposition to campaign finance restrictions officially in place, and at the same time, keeping quiet about it:  Searching the website for "Citizens United v. FEC," I found two brief references to the case, from July and September 2009, respectively, pre-dating the Court's landmark decision.  
   
But if many liberals and their organizations are selective in defending free speech, so is the Supreme Court, and so are many conservative Republicans who delighted in the Citizens United decision. (Commenting on the decision, my friend Harvey Silverglate suggests that the First Amendment is simply "a hook on which the Supreme Court's conservatives could hang their political hat.")  Conservative justices who have so staunchly defended corporate speech rights have also staunchly opposed speech rights for students and supported thought crimes involving child pornography -- thought crimes fashioned by members of Congress whose solicitude for corporate speech is often matched by their disregard for the core political speech rights of individuals.  You won't find many conservative Republicans who oppose restrictions on corporate electioneering and also oppose criminalizing flag burning.  With friends like these, the First Amendment will never want for enemies.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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