Four years have come and gone since the Supreme Court handed down Citizens United v. FEC, striking down a federal law that prohibited a corporation from showing a movie critical of then-Senator Hillary Clinton shortly before the first round of Democratic primaries. (Although Citizens United intended to air the film in 2008, it had to wait until the second year of the Obama presidency before learning the Constitution protected the movie.)
Back then, the response by the campaign finance control crowd to Citizens United was vicious. In one of his hyperventilating ukases, then-MSNBC frontman Keith Olbermann decreed Citizens United the worst decision since Dred Scott. Senator Patrick Leahy, chairman of the Judiciary Committee which oversees nominations to the federal courts, charmingly suggested that the case “could threaten the public’s confidence [sic] the Court’s impartiality.” The president of the United States took time out of his State of the Union address to lecture the Supreme Court, claiming (incorrectly) that Citizens United overturned a century of law and would allow foreign money to dominate our elections.
If only the Supreme Court had listened to the wisdom of Chief Justice Earl Warren and his likeminded justices, we would never have had to deal with Citizens United. In fact, had the Supreme Court listened to Chief Justice Warren, as well as FDR appointees William O. Douglas and Hugo Black, the holding of Citizens United would have been the law of the land for the past 57 years.
In 1946, Congress passed the Taft-Hartley Act over President Harry Truman’s vociferous veto (“I regard this as a dangerous intrusion on free speech, unwarranted by any demonstration of need, and quite foreign to the stated purposes of this bill.”). Among other things, Taft-Hartley imposed a specific ban on independent expenditures by corporations and labor unions advocating for or against candidates for office. That is, even if there was no coordination between a candidate and a union supporting him, the law banned that union from expending money on the candidate’s behalf.
(As an aside, Senator Robert “Mr. Republican” Taft’s zeal against union independent expenditures likely stemmed from the Congress of Industrial Organization’s decision to “distribut[e] to the public at large…200,000 copies of a pamphlet opposing the re-election of Senator Taft and supporting his rival.”)
A decade later, United States v. Automobile Workers, 352 U.S. 567 (1957), came before the Supreme Court. The defendants, a labor union, had made an independent expenditure before the 1954 elections. The federal government responded with modest forbearance by issuing “a four-count indictment” against the United Autoworkers.
There were two questions before the Court. First, was the union’s independent spending covered by Taft-Hartley (and therefore the indictment could stand)? Second, if the expenditure was banned by the law, then did Taft-Hartley’s expenditure ban run afoul of the First Amendment?
Rather than wrangle with the First Amendment issues at stake, a majority of the Court “[r]efus[ed] to anticipate constitutional questions,” and simply found the union’s spending was covered by the law. The case was remanded for trial.
But Justice William O. Douglas’s blistering dissent on behalf of himself, Chief Justice Warren, and Justice Black made clear that the Court’s reluctance to act was an affront to the very fabric of the Republic. (The entire dissent is worth a read.) Appropriately for the modern world, it’s a worthy retort to the tiresome talking points of the campaign finance controllers.
Some (you’ve seen the protest signs) have suggested that corporate and union electioneering is not protected by the First Amendment, “because money isn’t speech.” Justice Douglas’s dissent properly lays this misnomer to rest:
[N]o one would seriously contend that the expenditure of money to print a newspaper deprives the publisher of freedom of the press. Nor can the fact that it costs money to make a speech —whether it be hiring a hall or purchasing time on the air—make the speech any the less an exercise of First Amendment rights.
Others (again, you’ve seen the protest signs) have held that corporations and unions have no First Amendment rights, because such entities “aren’t people.” Justice Douglas disagrees:
First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.
Indeed, too often, complaints about Citizens United are really complaints about who is making independent expenditures. Hence the endless efforts to tie everything distasteful about the political right to the Koch Brothers.
In 1957, at a time when Southern states were passing disclosure laws designed to reveal the membership lists of the NAACP and “McCarthyism” was more than just an ad hominem tacked onto a Facebook status, Justice Douglas had the proper response: