Supreme Court

What's Worse, "Disingenuously waving the flag of the First Amendment," or Burning it?

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As I hinted at in my CNN.com column of yesterday, those self-identified free-speech champions who are crying in their Cheerios today over Citizens United v. the FEC are able to get to what many of us think is a contradictory position by pretending that the free-speech objection to campaign finance reform is a smokescreen for enabling the Corporatey Corporates (and their puppets, the Republican Party). For instance, The New York Times editorial board:

Disingenuously waving the flag of the First Amendment, the court's conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding. […]

[A] conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.

Or The American Prospect's Scott Lemieux:

The central line of argument in Justice Kennedy's majority opinion—that the First Amendment does not permit distinctions based on the identity of the speaker—is superficially attractive. The problem is, there's no reason to believe that any of the justices believe it.

Lemieux at least points to other Supreme Court cases to build a case for hypocrisy, but what's striking here is the inability to even pretend to take debate opponents at face value. When arguments are disingenuous, that apparently obviates the need to engage them. Thus, petulant hand-waving like: "Libertarians agree that letting corporations have more influence over the political process than ordinary citizens is excellent for the cause of freedom."

Ordinary citizens like…Russ Howard and Steve Cicero, who launched an unsuccessful grassroots recall campaign against a politician they considered corrupt, then were given a fine for campaign finance violations eight times the amount of money they had raised for it? Or how about (of all things!) the Supreme Court case in question, where documentary filmmakers faced jail if they broadcast a movie that made a politician look bad during election season? Or how about this description in yesterday's decision of what regulated political speech looks like in practice?

Campaign finance regulations now impose "unique and complex rules" on "71 distinct entities." These entities are subject to separate rules for 33 different types of political speech. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. In fact, after this Court in WRTL [the 2007 Wisconsin Right to Life case] adopted an objective "appeal to vote" test for determining whether a communication was the functional equivalent of express advocacy, the FEC adopted a two-part, 11-factor balancing test to implement WRTL's ruling.

This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak.

The plight of "ordinary citizens" is precisely the reason why non-Republicans like me (let alone many conservatives who refused to support John McCain) opposed the campaign finance laws struck down yesterday. When a law requires any group of two or more people who raise $5,000 for the purposes of making a political statement to adhere to a blizzard of federal regulations subject to fines, that law by definition chokes off the "voices of everyday Americans" that President Barack Obama, in his ridiculous reaction to the decision yesterday, expressed outrage on behalf of. Free-speech campaign-finance enthusiasts are willing to censor or chill those small voices for the greater purpose of attempting (and largely failing) to blunt the political activity of hated Corporations (or "Wall Street banks, health insurance companies and the other powerful interests," in the words of a president who has been bailing out Wall Street banks and crafting legislative deals with health insurance companies and other powerful interests for a year now). What campaign-finance supporters are not willing to do, at least most of the time, is admit that they're making any tradeoff on political expression at all.

Watch former FEC chairman Brad Smith break it down, on Reason TV.