In Support of Citizens United, Against Targeting Political Speech

We recently celebrated the five year anniversary of a straightforward ruling issued by the Supreme Court: Prohibiting people or groups from participating in campaign debate is a gross violation of the First Amendment’s guarantee of free speech.

Few would disagree with that proposition—until you mention the case’s name: Citizens United v. FEC. The Justices struck down parts of the 2002 Bipartisan Campaign Reform Act (better known as McCain-Feingold) prohibiting unions, corporations, and nonprofits from releasing election-related ads within 30 days of a general election and 60 days of a primary election.

The outcry on the left was swift. The New York Times, for example, declared that the ruling “strikes at the heart of democracy.” How so? By unleashing supposed “dark money”—donations to groups that are not required to disclose their donors.
Free speech advocates, including some on the left, were more measured. Joel M. Gora, a law professor, campaign finance law expert, and long-time lawyer for the American Civil Liberties Union, told the Times that it was a “great day for the First Amendment,”because the ruling checked the chilling effect on free speech caused by “our incredibly complex system of campaign finance rules and regulations—about who can speak and what can be said and when it can be said—presided over by the government bureaucrats”.

Unfortunately, Gora’s was a lonely voice among his ideological brethren. In the months following Citizens United, many liberal pundits, politicians, and bureaucrats began systematically undermining the ruling in a number of ways.

The Obama administration kicked off this crusade. In the days after the election, the president and senior White House officials launched unprecedented rhetorical attacks. The president attacked conservative nonprofits empowered by the ruling as “shadow”groups “posing” as nonprofits, whose free speech would lead to “dark money”undermining “the influence of average Americans” and devastating “the public interest.”

Obama even went after Supreme Court’s Citizens United majority, with those justices sitting mere feet from him, during his 2010 State of the Union Address. This episode may have been the nadir of the administration’s efforts to delegitimize its opponents, but it is part of a long pattern.

According to an analysis by the Competitive Enterprise Institute, the U.S. Environmental Protection Agency (EPA) gave ideologically aligned pressure groups preferential access to public records to while stonewalling those it deemed unhelpful to the administration’s agenda. This delay, denial and stonewalling of perceived political opponents recalled the president’s desire to “punish our enemies and…reward our friends” (the EPA’s Inspector General, asked by Congress to look into the matter, responded by avoiding the specific charges levied).

Politicians at the state level joined the fray. In Wisconsin, liberal prosecutors used some rather indefensible legal theories to prevent conservative donors and groups from assisting Governor Scott Walker’s (R) reelection campaign. In California, Attorney General Kamala Harris (D) demanded that a conservative group, Americans for Prosperity Foundation, disclose its donors to the state—information which then surely would have been leaked to the group’s opponents, as the Internal Revenue Service did in another case.

That same IRS perpetrated the most invidious attacks against unwanted political speech, openly encouraged by Senate Democrats. In May 2013, the Treasury Inspector General for Tax Administration found that the IRS had singled out Tea Party groups and other government critics for further review solely because of “their names or policy positions.” In June 2014, the House Oversight and Government Reform Committee concluded that this targeting was triggered by the agency’s fears that the Citizens United decision would strengthen conservative and free market groups.

The common theme here is a concerted effort to prevent conservative nonprofits from politically challenging the left. Lois Lerner, the IRS employee at the heart of the agency’s scandal, expressed this sentiment best. Congressional investigators discovered a document in which she demanded the IRS “fix the problem” of nonprofit political speech created by Citizens United “before the [2010] election.”Though the IRS was unable to save President Obama's party from a historic loss, it did manage to suppress the speech of numerous conservative groups.

Revelation of IRS targeting of conservative groups only prompted defiance. Two examples from 2014 stand out. First: The IRS announced plans to rewrite the regulations governing nonprofits like those it had previously targeted, specifically toward limiting their ability to speak out regarding elections and politics. Second: In the U.S. Senate, 54 Senators—all Democrats—voted in favor of a constitutional amendment giving Congress authority to regulate and control all speech affecting politics.

Encouragingly, both proposals were lambasted by a broad alliance of free speech advocates for transparently seeking to limit Citizens United’s influence and clamp down on free speech. The ACLU noted that the proposed constitutional amendment would “lead directly to government censorship of political speech.”

Sadly, however, too many on the left show no signs of relenting in their campaign to prevent challenges in the public square. Repealing Citizens United is a central tenet of their dogma, and sympathetic politicians seem willing to do anything to limit or overturn that decision. But among the bases for the First Amendment’s guarantee is the reality that competition in the marketplace of ideas makes our system a healthier one. Five years after Citizens United, that proposition needs more defense than ever.