"In short, this is precisely the sort of cantankerous political speech that ought to be protected under the First Amendment. The problem is..."

Damon W. Root | August 20, 2009

As Jacob Sullum has previously discussed, the Supreme Court heard arguments last term in the case of Citizens United v. Federal Election Commission. At issue was the 90-minute documentary Hillary: The Movie, which was produced by the conservative group Citizens United and intended for distribution before the 2008 elections. This would have been illegal under the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold), however, which bars corporations and non-profit organizations (such as Citizens United) from sponsoring "any broadcast, cable, or satellite communication" that mentions a candidate in a federal campaign within 30 days of a primary or 60 days of a general election.

In an unusual move, the Court decided to rehear oral arguments, scheduling them for September 9, which is a few weeks before the next term officially kicks off. Earlier this month in The Washington Post, liberal columnist Ruth Marcus offered an astonishing case for why the Court should gut the First Amendment and restrict political speech:

In short, this is precisely the sort of cantankerous political speech that ought to be protected under the First Amendment. The problem is that for purposes of federal election law, Citizens United is treated the same as Wal-Mart because it is a nonprofit corporation and it takes corporate as well as individual donations.

We don't want Wal-Mart—at least I don't—using its purchasing power to buy elections, and we don't want Wal-Mart funneling money to a nonprofit proxy. But how to keep Wal-Mart out of the candidate-electing business while protecting the speech of ideological groups?...

The smart, not to mention judicially restrained, approach would be for the court to take one of several available escape hatches, much as it did in avoiding a final verdict on the constitutionality of the Voting Rights Act. It could say that because Citizens United took such a small amount of corporate money, it should not be subjected to the same rules as a regular for-profit corporation. (This is already true for ideological nonprofit groups that don't take any corporate funds.) It could say an on-demand video is not the same as a commercial.

So much for taking rights seriously!

Here's a little something Marcus forgot to mention: During oral arguments last term, the government openly admitted that the same precedent allowing this suppression of political speech would logically apply to the publication and distribution of books. Perhaps she'll suggest a few more "escape hatches" when that time comes.

And what about her talk of judicial restraint? She may think that she's trapped the Court's conservatives (and conservatives in general) with their own famous attacks on judicial activism. But even the biggest foe of "judicial tyranny" still thinks that a specifically enumerated constitutional provision (the First Amendment, look it up) should trump a lousy federal law. By striking down this portion of McCain-Feingold the justices won't be "legislating from the bench," they'll be doing their constitutional duty.

Comments

Tomcat1066|8.20.09 @ 2:33PM|#

But the First Amendment only counts when I like what you're saying, right? Otherwise, it's not free speech but something else and should be regulated.

Kyle Jordan|8.20.09 @ 2:40PM|#

......

You know, we need an invasion. I'm now convinced that people are simply too stupid for liberty and freedom.

I already regret thinking this and will probably regret typing/saying it even more but I think the best thing that could happen would be a massive alien invasion. The aliens taking people as slaves and killing them in droves.

Kind of like DC's summer event last year "Final Crisis".

Basically, Darkseid, who is essentially DCs God of Evil, finds something he's been looking for for ages called the "Anti-Life Equation" that robs the freewill of a living being. In the story, some of the heroes that fall victim to the ALE try their hardest to submit to it again after it's taken away because, in the words of the Green Arrow "...Anti-Life was so much easier...".

I see a lot of this attitude in people. And I fucking hate it.

Kyle Jordan|8.20.09 @ 2:42PM|#

And yes I know my post was insane. It needed to be to match the fucking idiocy that's been blogged about on Reason that past couple of weeks.

Warty|8.20.09 @ 2:47PM|#

It's OK, Kyle. The only cure for insanity is more insanity...or something like that.

Tomcat1066|8.20.09 @ 2:50PM|#

I thought the only cure for insanity was Kate Beckinsale?

Jeff P|8.20.09 @ 2:52PM|#

Is there a compromise where we can get a moratorium on pundits publishing new books about what's wrong with America? Give me three months without seeing the face of some yapping idiot from a news channel who thinks that qualifies him to write a book...

|8.20.09 @ 2:53PM|#

Just like my eyes see "feministing" as "femfisting" (thus forcing me to think of lezdom fisting), I swear I read Citizens United as Citizen Nothing. My nanosecond long stream of conciousness actually came up with: "Citizen Nothing has a case in the Supreme Court docket? And he's using his H&R handle in the case?! WTF?!!"

Stupid speed-reading classes.

No Name Guy|8.20.09 @ 2:54PM|#

Ruth Marcus is not liberal (at least in the classic meaning of the word) - but certainly in the current meaning.

It's absolutely amazing that anyone can contort 'free speech' so badly. I bet this dumb bitch thinks she's enlightened.

WWJGD|8.20.09 @ 2:55PM|#

"they'll be doing their constitutional duty."

Judicial activists! Unelected old men legislating from the bench!

Seward|8.20.09 @ 2:58PM|#

Do we really want the government telling people who they can and cannot associate with? Because this is about that as much as anything else.

|8.20.09 @ 3:03PM|#

You know, I thought we had seen a possible nadir of stupidity leading up to the 2008 election. I figured it would have to recede and calm down once Obama became president. But it just. keeps. getting. worse. The healthcare idiocy, the absolute jettisoning of any free speech principles across the liberal pundit board, including Marcus here, and the general hysterical mood pervading the chattering classes is unreal.

How do they keep this up? This much cocaine should have burned out all their dopamine, norepinephrine, and serotonin levels by now.

Anonymous|8.20.09 @ 3:06PM|#

So what's the difference between Walmart donating to things and a partnership in a country without incorporation law doing the same?

|8.20.09 @ 3:07PM|#

The smart, not to mention judicially restrained, approach would be for the court to . . . say that because Citizens United took such a small amount of corporate money, it should not be subjected to the same rules as a regular for-profit corporation.

What an idiot.

What she characterizes as "judicial restraint" is judges amending a statute from the bench by creating, out of whole cloth, an exception for non-profits that take only some de minimis amount of filthy corporate money. That, ny friends, is legislating from the bench, the very definition of judicial activism.

No, judicial restraint resides in not amending the Constitution sub rosa to allow unconstitutional legislation to stand, and striking such legislation from the books, not amending it ultra vires so that it just barely passes Constitutional muster.

Kyle Jordan|8.20.09 @ 3:15PM|#

"You know, I thought we had seen a possible nadir of stupidity leading up to the 2008 election. I figured it would have to recede and calm down once Obama became president. But it just. keeps. getting. worse. The healthcare idiocy, the absolute jettisoning of any free speech principles across the liberal pundit board, including Marcus here, and the general hysterical mood pervading the chattering classes is unreal.

How do they keep this up? This much cocaine should have burned out all their dopamine, norepinephrine, and serotonin levels by now."

Seriously. You know, my paranoid meter is usually a bit higher than the average person but I really think there's going to be some type of "explosive incident" or something going on soon. The left's chattering heads are foaming at the mouth and the average populace seems to be getting crazier too. I hope I'm very wrong in this. I simply do not see a good ending coming up.

Seward|8.20.09 @ 3:16PM|#

R.C. Dean,

Well, it is just absolutely bizarre to me that somehow if I or an organization takes corporate money that somehow "taints" the viewpoint; whereas if I take it from a non-profit it does not. It is a romantic view of the world that public choice theory absolutely eviscerates.

|8.20.09 @ 3:16PM|#

"We don't want Wal-Mart-at least I don't-using its purchasing power to buy elections, and we don't want Wal-Mart funneling money to a nonprofit proxy"

But multi billion dollar media corporations doing the same thing by publishing a newspaper is just a-ok. What a moron.

|8.20.09 @ 3:17PM|#

It's funny this comes up, as I was talking to a business associate about Obama and such, and he asked about the Constitution and Obama's powers and the like. I told him the sad lesson I've learned: The past 200+ years of Supreme Court decisions has rendered the Constitution meaningless. This is just another fine example of where the clear meaning of the First Amendment has been so twisted over the years that this can even be an issue. I guess it does keep the lawyers employed.

|8.20.09 @ 3:18PM|#

Seward,

The other is that name me a non-prophit that doesn't take corporate money? Citizen's United is tainted by taking corporate money. But, when groups like the Sierra Club take millions in corporate money they are not. WTF?

Xeones|8.20.09 @ 3:19PM|#

But it just. keeps. getting. worse.

Told you we hadn't hit peak retard yet.

|8.20.09 @ 3:20PM|#

Hey, the constitution was great when they needed it to break away and declare independance from Europe, but it isn't relevant today. That's what the president and his congress are for.

|8.20.09 @ 3:21PM|#

The left's chattering heads are foaming at the mouth and the average populace seems to be getting crazier too.

I don't think there will be an "explosive incident". The chattering heads feed off one another and tend to whip each other into a frenzy; it's all part of their little culture. The one thing that's a little different here is that usually all of them get spastic in their partisan ways; but now, it seems like the left is going stratospheric while the right seems to be keeping its collective head down.

Now, that may be that the right sees the left imploding and is getting out of the way, but they're usually not that smart. We'll see.

|8.20.09 @ 3:22PM|#

That was sposed to be al snarky and stuff but I wonder how many folks really think like that.

|8.20.09 @ 3:25PM|#

Episiarch,

I think the "right" such as it is is as taken aback by the townhalls and such as the left. They had no idea. Further, they are far too incompetant and greedy to ever pull off such a thing. What we are seeing here is an actual case of the silient majority of Americans who normally don't pay a lot of attention starting to get pissed off. It is no wonder creatures like TV talking heads are scared shitless.

|8.20.09 @ 3:28PM|#

brotherben,

Didn't you see the copied and pasted posts form the facebook flamewar (where the socialist said that if we weren't socialist we shouldn't even be allowed air?)?

More folks think like that than we can imagine. And I have a huge imagination.

As for the whole non-profit vs. corporate money issue, I feel it stems from the current misbelief that money is the root of all evil. It is the love of money that was supposed to be the evil part, not the little pieces of paper.

Sal Paradise|8.20.09 @ 3:29PM|#

A new Godwin for Team Blue. Instead of comparing your enemies to Nazis, compare them to Walmart.

Tomcat1066|8.20.09 @ 3:31PM|#

"That was sposed to be al snarky and stuff but I wonder how many folks really think like that."

More than I really want to count. I've heard stuff not that different more than once. But it's not from one side versus the other. Plenty argued similarly with the Patriot Act.

|8.20.09 @ 3:42PM|#

"More than I really want to count. I've heard stuff not that different more than once. But it's not from one side versus the other. Plenty argued similarly with the Patriot Act."

Very true. But saying that perhaps the Bill of Rights shouldn't apply to people who come from foreign countries who are plotting to blow us up is not not nearly as stupid or crazy as saying that the 1st Amendment should not apply to anyone who makes a profit or takes money from someone who does.

Progressives|8.20.09 @ 3:50PM|#

We used to like a living constitution. Now we prefer a dead one.

|8.20.09 @ 3:52PM|#

There are so many things that have led us to where we are. The generation of voting age kids that were raised as little ice cream screamers. The previous administration convincing the multitudes that letting the govt assume control in the name of national security is just the right thing to do. The congress being in bed with big business for decades. The welfare crap that Johnson signed in 1965.
It has us now in a place where everybody wants everything and nobody wants to pay for it. Ya got folks voting for president and Congress that can't pour piss from a boot without illustrated instructions. People screaming just for the sake of screaming.
Christ, I don't know what the damn answers are
but if you ask me some questions, I'll make some shit up that sounds plausible.

|8.20.09 @ 3:56PM|#

Didn't you see the copied and pasted posts form the facebook flamewar (where the socialist said that if we weren't socialist we shouldn't even be allowed air?)?

I saw that and it is retarded. A socialist would have to have air taken from someone and redistributed to them by the government. Anyone else can just inhale. Or is that communism. What's the difference again?

EscapedWestOfTheBigMuddy|8.20.09 @ 4:01PM|#

What part of "Congress shall make no law ..." do they not understand? The more so as this goes to freedom of speech, freedom of the press, and the freedom of association.

There is actually a place hey could get so traction, though. The doctrine of treating a corporate entity the same as a actual human being is a matter of law and precedent, not a constitutional requirement. So Congress could change things on that front. If they were bat-shit crazy---it would throw huge segments of existing law (both statute and precedent) into question. I imagine that the economic dislocation would be considerable.

You don't really need to worry about that, though, because it wouldn't accomplish the main goal of campaign finance reform: keeping the incumbents in power.

|8.20.09 @ 4:01PM|#

Nick,

You have to understand. Paying taxes is not good enough. You are only entitled to government services if you love the government and are greatful to it. If you don't, you have bad political conscience and are not entitled to anything.

Liberals pull that kind of logic all the time. Right now on the front cover of Slate there is some shithead saying that old people have no right to object to Obamacare because they are all on medicare. The logic seems to be once you accept any benefits from the government you can never object any expansion of government even if you didn't want and are required by law to take the government benefits you are recieving.

JB|8.20.09 @ 4:13PM|#

I say take away Ruth Marcus' first amendment rights. Let's pass a law telling her to STFU.

Stupid hypocrite.

|8.20.09 @ 4:17PM|#

You are only entitled to government services if you love the government and are greatful to it.

Like the distubing scene in the movie version of 1984 with the rat in the cage getting closer and closer the the guy's face...

It's not enough to obey Big Brother, you have to Love.

Nick, one's about being social, e.g. Paris Hilton is a socialitist, the other is living communally, or something.

Some important aspect of the Government owning the air to begin with, simply because it is public air. Thus Public=Owned by the Government. And thus, able to be governed, that is, distributed to whom "they" see fit.

"Property Rights" is a 4-letter word (phrase?) with that crowd.

|8.20.09 @ 5:14PM|#

I'm a first amendment extremist. I'm in the fine company of Madison and Jefferson, so I hope the progressives will cut me some slack.

McCain-Feingold is unconstitutional, lock stock and barrel.

Progessives/liberals/leftists/whatevers who support this evil piece of shit can go fuck themselves. Any on the right who think likewise can also follow that sage advice. I'm tired of the weasel words and lame justifications for attemppting to gut the finest 45 words ever strung together in the history of humanity.

|8.20.09 @ 5:19PM|#

And you lagal scholars on SCOTUS know I'm right. Grow some fucking stones and end this travesty, this usurpation of my unalienable rights.

EscapedWestOfTheBigMuddy|8.20.09 @ 5:21PM|#

J sub D:

I'm a first amendment extremist. I'm in the fine company of Madison and Jefferson, so I hope the progressives will cut me some slack.

McCain-Feingold is unconstitutional, lock stock and barrel.

Hear! Hear!

|8.20.09 @ 5:28PM|#

See now, you guys keep choosing the incompetence option, whereas I'm choose the malice option.

People like Marcus and the frothing-at-the-mouth-breathers leftists punditry we've heard from in the past fe weeks are just plain fucking evil.

There's no other word for such over-the-top and absolutely intentional dishonesty. The level of dishonest discourse that has come from the left's mouthpieces has set a new benchmark that I submit will hold for many years to come.

My bet is that Marcus is planning on setting up a nice, cozy little non-profit that will only "coincidentally" benefit from this new non-profit friendly speech regime.

|8.20.09 @ 5:31PM|#

Well, the USSC overturned the sodomy ruling (Bowers v Hardwick) with Lawrence v Texas, so no reason why they can't overturn McConnell v FEC...

|8.20.09 @ 6:10PM|#

The doctrine of treating a corporate entity the same as a actual human being is a matter of law and precedent, not a constitutional requirement. So Congress could change things on that front.

Please direct me to that portion of the Constitution, laying dormant lo these two centuries and more, that gives Congress the authority to make corporate law.

Anonymous|8.20.09 @ 6:29PM|#

R C Dean, that is actually how people use the doctrine of incorporation (and substantive due process): powers delegated to the States can be taken up by the federal government at any time.

EscapedWestOfTheBigMuddy|8.20.09 @ 6:39PM|#

The doctrine of treating a corporate entity the same as a actual human being is a matter of law and precedent, not a constitutional requirement. So Congress could change things on that front.

Please direct me to that portion of the Constitution, laying dormant lo these two centuries and more, that gives Congress the authority to make corporate law.

Well, hmm. Nightmare scenario, but...

The Commerce Clause would seem to allow them to
* insist that the states recognize (or not) corporate entities chartered by other states at least in matters of interstate commerce.
* regulate the extend to which corporate entities may engage in interstate commerce or foreign trade (or trade with the Indian tribes, for what that's worth).

The "progress of science and useful arts" bit would seem to allow them to determine if a corporate entity is eligible to hold a trademark or patent.

The "uniform laws on the subject of bankruptcies" could be employed to put limits on the nature of organization which are allowed to declare bankruptcy.

Taken as a whole these allow an effective veto on the nature of, and judicial treatment of corporate entities. If the Congress really and truely wanted to bring the whole damn economy crashing down, breaking the institution know as the corporation seems to be within their constitutional grant of power.

I can't see, however, how the First Amendment would allow such discrimination against partnerships and the like...

Paul|8.20.09 @ 7:08PM|#

Oh, and by the way, Thomas Jefferson, first amendment extremist, staunch defender of the power and freedom of the press, never took a newspaper and claimed he was a better man for it.

Contradiction? I think not.

B|8.20.09 @ 10:28PM|#

"I think the "right" such as it is is as taken aback by the townhalls and such as the left. They had no idea. Further, they are far too incompetant and greedy to ever pull off such a thing."

There is nothing more fucking stupid than someone lumping tens of millions of Americans into one group, calling them by a simple name, and then claiming that all these people are idiots and incompetent and ascribing character traits like greed to everyone one of them. I could as easily write that all individuals named John are retarded douchebags that can't fucking spell words like silent properly.

B|8.20.09 @ 10:30PM|#

Slight correction to the above post: "...and then claiming that all these people are idiots and incompetent and ascribing character traits like greed to every one of them."

Anonymous|8.20.09 @ 10:34PM|#

B, how are we ever going to move beyond parties and shouters toward our Bright Common Future if you insist on thinking critically!?

|8.20.09 @ 11:04PM|#

300 million americans are assholes.