According to The New York Times, This Is the 101st Century

Over at The Atlantic, Wendy Kaminer catches two recent whoppers told by prominent critics of Citizens United v. FEC, the 2010 decision in which the Supreme Court overturned restrictions on  the political speech of corporations. In a January 18 Washington Post column, Katrina vanden Heuvel, editor of The Nation, identified former Sen. Russell Feingold (D-Wis.), co-author of the law that gave rise to the case, as "a victim of Citizens United spending." But Vanden Heuvel refutes herself by supplying a link to a Nation interview in which Feingold says:

Money in politics is a huge issue. But let's be clear: I certainly wasn't underfunded [in 2010]. I don't think another $100 million would have changed the outcome of my race. I don't think even $100 million would have mattered, because of the mindset that had developed, because of the desire on the part of a lot of voters to send that message.

Kaminer concludes that "it takes chutzpah, shamelessness, or negligence to cite as support for a factual assertion an authoritative statement that directly contradicts it." The other blatant misrepresentation she identifies is quite familiar by now, having been endorsed by President Obama in his 2010 State of the Union address, during which he claimed that in Citizens United "the Supreme Court reversed a century of law." This was the statement that apparently provoked Justice Samuel Alito, sitting in the audience, to shake his head and mouth the words "not true." Kaminer cites a variation on it in a November 22 New York Times editorial that claimed "the majority [in Citizens United] overturned a century of precedent that it had twice recently reaffirmed."

A fair reading of these statements is that the Supreme Court repudiated its own century-old precedents, revising case law that had been well settled since the Taft administration. In fact, the two decisions that the Court overturned, McConnell v. FEC (which upheld the Bipartisan Campaign Reform Act, a.k.a. McCain-Feingold) and Austin v. Michigan Chamber of Commerce (which upheld a law that prevented corporations from running ads in support of candidates for state office), date from 2003 and 1990, respectively. But overturning 100 years of precedent sounds five times more radical than overturning 20 years of precedent, so that is the number that critics of Citizens United routinely use.

Even if we read the claims by Obama, the Times, and all the others more charitably by assuming they were talking about statutory law, as opposed to Supreme Court precedent, they are still off by nearly half a century, since Congress did not ban independent expenditures by unions and corporations until 1947. Perhaps Obama et al. are thinking of the ban on corporate contributions to federal candidates, which was imposed in 1907. The thing is, Citizens United did not affect that ban at all, although hyperventilators who warn that our democracy will soon drown in a flood of corporate money frequently imply otherwise. In its November 22 editorial, for instance, the Times said the decision "unleashed corporate, union and other money into electoral politics." And in a February 2010 editorial that Kaminer also cites, the Times falsely claimed that the Court had granted "constitutional sanction to unlimited corporate and union campaign contributions."

As Kaminer relates, former ACLU Executive Director Ira Glasser objected to that characterization and asked the Times for a correction. After months of exchanges with the paper's corrections department and its "public editor" (during which time the "century of precedent" claim appeared), the Times clarified its position: It would continue to deliberately conflate independent expenditures by corporations, which are permitted as a result of Citizens United, with corporate campaign contributions, which remain illegal, because it thinks they amount to pretty much the same thing. As Editorial Page Editor Andrew Rosenthal put it, "It is our view that in this century, there is no longer a whit of difference between allowing a corporation to contribute with no limits and no transparency to politics, and allowing them to contribute to individual candidates." This sounds to me like a post hoc rationalization for embarrassing misstatements that the Times is determined not to correct. But even if we take Rosenthal at his word, the Times is not simply arguing that the practical effects of independent expenditures are exactly the same as the practical effects of corporate campaign contributions. Instead it is translating this dubious conclusion into indisputably false statements about the legal changes made by Citizens United.

For more on those changes and the hysterical reaction to them, see my December Reason cover story. The eminent First Amendment litigator Floyd Abrams (who represented the Times in the Pentagon Papers case—which, unlike Citizens United, was a good First Amendment decision because it protected the free speech rights of corporations that own newspapers) analyzed the "fury" and "fierceness" of Citizens United alarmists in The Yale Law Journal last fall.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • .||

    Classy, and off-topic as usual.

  • ||

    I never really thought I'd have a use for a St. Andrews cross until I found out who Katrina vanden Heuvel is.

  • Pip||

    "off-topic as usual"

    You Lie!

  • Almanian||

    It's OK, Pip, since I continue to have an unrequited - and unexplainable and irrational - love for Katrina, my sun-dried, paperclip-thin, shit-for-brains, dunce-of-a-liberal goddess.

    I don't know why - who knows what makes love stir? So Katrina is not unloved - just unloved by Pip.

    Sigh - she's dreamy

  • ||

    Kaminer concludes that "it takes chutzpah, shamelessness, or negligence to cite as support for a factual assertion an authoritative statement that directly contradicts it."

    I'd vote for negligence. Which is why so many journalists may find themselves working for $0.33 per word (re: the huffpo/aol story yesterday).

  • Spartacus||

    In its November 22 editorial, for instance, the Times said the decision "unleashed corporate, union and other money into electoral politics."

    Well, sure, that's probably a true statement. Especially if you throw in the "and other" bit. And with a suitable definition of "unleashed".

    So, you see, the Times is absolutely truthful here. What are we complaining about?

  • Katrina Vanden Heuvel||

    It's only free speech when *I* say it is.

  • Michael Ejercito||

    How is it that the Times got the facts so wrong?

  • Devil Inchoate||

    As Editorial Page Editor Andrew Rosenthal put it, "It is our view that in this century, there is no longer a whit of difference between allowing a corporation to contribute with no limits and no transparency to politics, and allowing them to contribute to individual candidates."

    Why doesn't the Times print the truth and let its readers decide for themselves if there is a whit of difference?

  • MJ||

    The campaign finance reformers used to say that they could limit donations because "money is not speech". Now, they are arguing that they can regulate speech because "speech is money".

    They have completely flipped their rationale on its head and do not even seem to acknowledge it.

  • ||

    "It is our view that in this century, there is no longer a whit of difference between allowing a corporation to contribute corporate newspaper to publish with no limits and no transparency to on politics, and allowing them to contribute to individual candidates."

  • Almanian||

    Katrina vanden Heuval continues to fuck up stuff, and I continue to love her despite her blatant, and worsening flaws as a "journalist".

    It's like watching a cute puppy take a shit on the carpet - you KNOW it's going to happen. But in her case, there's no amount of training that will fix it.

    Sigh...she's dreamy.....

  • ||

    After months of exchanges with the paper's corrections department and its "public editor" (during which time the "century of precedent" claim appeared), the Times clarified its position: It would continue to deliberately conflate independent expenditures by corporations, which are permitted as a result of Citizens United, with corporate campaign contributions, which remain illegal, because it thinks they amount to pretty much the same thing.

    And my liberal relatives and friends just can't understand why I will never subscribe to the Times.

  • spur||

    I'm glad to see that honest quote from Feingold - I always liked the guy for some weird reason - despite the abortion that is McCain-Feingold he always came across as having some vague semblance of respect and integrity which is more than I can say even for Senators I agree with more ideologically.

  • ||

    Same here. I met him a few times, and he was always earnest and wonky and likable.

    Of course, its the Sincere Reformer, the I'm From the Government to Help You types, that are the absolute worst.

  • spur||

    And KvH responds with typical humility:

    http://www.thenation.com/blog/.....C#comments

  • CatoTheElder||

    A reversal of a mere century of law is no big deal

    Government action authorized under the so-called PATRIOT Act reverses EIGHT centuries of law.

    The mortgage and senior bond cramdowns have reversed at least two centuries of mortgage and corporate bankruptcy law.

    Even if Obama told the truth about the significance of Citizens United, it's nothing compared to what the trashing of well-established law under Bush/Obama Administration.

  • Michael Ejercito||

    Government action authorized under the so-called PATRIOT Act reverses EIGHT centuries of law.


    How so?

  • Phoenix||

    NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

    - Clause 29, Magna Carta (1297 AD)

  • ||

    Rosenthal: "It is our view that in this century, there is no longer a whit of difference between allowing a corporation to contribute with no limits and no transparency to politics, and allowing them to contribute to individual candidates."

    But the law certainly sees a difference since individuals and corporations are limited in how much they can give to candidates. That is, the "no limits" and "no transparency" applies to political speech and not political donations.

    The differences are obvious no matter how much one wants to close his eyes.

  • ||

    Even if Citizen United did "overturn a century of law", so what?

    The argument makes no sense. Why is the length of time a given doctrine has been used of any significance? Exactly how much time is "too much" and what is this standard based on?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement