On January 23, the New York Times denounced the Supreme Court's ruling in Citizens United v. F.E.C., stating that “the court[] ... has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials.” In a twist worthy of Monty Python and the Life of Brian, this editorial was unsigned, representing the voice of the New York Times Co., itself a corporation. It amounted to “this corporation says that no corporation has a right to free expression.”
Next I suppose the entire staff will gather together and chant, in unison, “we are all individuals.”
Sorely missing from most critiques of the case are the facts, probably because they are devastating to their argument. Citizens United made a movie called Hillary: The Movie, allegedly a 90 minute infomercial against Hillary Clinton, who was then seeking to become president. Citizens wanted to advertise for its movie, but the FEC stated that it could not, because they held that the advertisements were tantamount to electioneering by urging against the election of a candidate, and as a corporation Citizens was forbidden from electioneering close to elections.
“But wait,” I hear you say, “didn’t all those news stories say this was about campaign expenditures?” Well, this is where the media has been incredibly disingenuous on this topic. The FEC said that they could not purchase advertising. So you can judge for yourself whether this sounds more like a mere restriction on spending, or a restriction on freedom of expression.
And that knocks down one argument arrayed against this decision: “money is not speech.” It lays bare that if you can’t spend money, your ability to speak will be severely limited.
Another argument raised against this decision is that since a corporation is not a “person” it has no right to speak. I find that to be a curious assertion. The Democratic party is not a person, either, but I don’t think any rational person would argue that a law forbidding the Democratic party from advertising would be constitutional. And for that matter, the New York Times Company is not a person either, but that didn’t stop the Supreme Court from reaffirming its right to speech in cases such as NYT v. Sullivan. Is it now the position of the Times that this case was wrongly decided? The notion that corporations are not covered by the first amendment is downright pernicious.
In dissent, Justice Stevens indicated that the institutional press, and only the institutional press, is protected from such regulation by the press clause. This argument proves too much. By that logic, then, Thomas Paine’s Common Sense would not be protected by freedom of the press—an outcome that would surely have appalled the framers of the Constitution. To the founders, freedom of the press was extended to all who published, period.
Indeed this view is so wrong headed, that there wasn’t even an institutional press as we know it today, back then. Mind you, there were newspapers, but they made no bones about the fact that they were organs of whatever party bankrolled them. The idea of a press that at least pretended to be fair and balanced didn’t exist until Hearst came along in the 20th century.
Further this media corporation exception in McCain-Feingold was in practice arbitrary. GE for instance, was allowed to own NBC and MSNBC. And as GE’s Jeffrey Immelt worked for the Obama administration, anchors such as Keith Olberman and Chris “Tingles” Matthews promoted the Obama agenda, while GE’s competitors didn’t enjoy the same advantage. How cozy.
Meanwhile, bizarrely, Citizens United, a company that appears to do little more than make political documentaries is nonetheless treated more like Exxon than the Washington Post Company (yes, another corporation). Can anyone explain with a straight face why Citizens is not a media company? But the FEC refused to treat them as a media company and sought to limit their speech. And for that matter, why was it that Michael Moore and Disney, were allowed to promote Fahrenheit 9/11, an anti-Bush screed, but CU was not allowed to promote its movie? Even if the decision was not based on political bias, it is still arbitrary, which is fatal under the First Amendment. Under the First Amendment, any restrictions have to be clearly written and applied with utmost consistency, or else there is a danger that democrats will be held to one standard, and the republicans to another.
But there is a more fundamental mistake the critics of this ruling are making. Invariably these critics complain that corporations have a certain point of view that now will be advanced above all others. They believe this is a justification for their regulation of corporate speech. However, it is precisely this attitude that is the fatal flaw in their argument.
In McCulloch v. Maryland, the Supreme Court stated that the constitution was not a prolix legal code—a series of technicalities that had to be observed. Instead its generalities set up a set of objects, goals that the government may not pursue by any means. Under the First Amendment, Congress may not control our debate by any means. As Justice Jackson wrote, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics.” But those critics of the Court’s decision often seek precisely to create an anti-corporate orthodoxy in our politics. Even if you agree that corporations are bad, this is a goal forbidden to Congress.
What is more startling is that normally liberals get this. Nazis marching through Jewish neighborhoods is rightfully seen as a necessary evil under the First Amendment, but these liberal critics cannot suffer Exxon endorsing a candidate just before the election.
And for all the talk of the fear of corruption, there isn’t a single word spared for the even greater danger of corruption when the congress gets in the business of deciding who can and can’t speak in relation to their own re-election.
Here is the dirty truth of the First Amendment. It isn’t that most people want people to spout racist views or to burn the flag. Instead we have learned by bitter experience that you cannot trust the government to decide what can be said, or who has the right to say it.
McCain-Feingold was unconstitutional and un-American. Good riddance.
