Believe it or not, when the IRS scandal first broke on May 10, the first reaction from many progressives was to blame the Right — specifically, the Supreme Court’s conservative majority — for the affair. “In order to fully understand the IRS-targeting-conservatives scandal,” said Chris Hayes on MSNBC, “you really need to know about the other hidden, untold IRS scandal because that virtually unknown secondary scandal is actually the fertile soil in which the seed for this new scandal was planted.” This second scandal, Hayes and others allege, is the High Court’s 2010 ruling in Citizens United v. FEC.
These progressives aren’t entirely wrong. The Citizens United ruling did create ambiguities in election and tax law. But what the Left fails to tell you is that underneath the fertile soil of this second scandal is a third scandal: that our federal government has the power to regulate free speech at all.
In 1974, Watergate-era Democrats amended the Federal Election Campaign Act to limit individuals’ ability to contribute to political campaigns. President Ford vetoed the bill, but Congress overrode him.
It was an egregious violation of the First Amendment’s stricture that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people . . . to petition the Government for a redress of grievances.” It is this third scandal — that the federal government has an extensive role in regulating political speech in the first place — that is the direct cause of the scandal we face today.
Progressives are keen to wrap themselves around the First Amendment when it comes to publishing pornography or leaking classified information. On Tuesday, the New York Times lashed out at the Obama administration for “threatening fundamental freedoms” by monitoring the e-mails of Fox News’s James Rosen.
But when it comes to the right of Americans to speak out against their government, the Left has a much more nuanced position. Labor unions and the media should have unlimited rights to say what they want, according to progressives, but individuals should not. The principled argument they make is that if we don’t regulate campaign contributions, wealthy people will have more political influence than poor people, and that this would be unfair. (Any advantage that such a regime confers upon Democratic constituencies is entirely accidental.)
From a policy standpoint, this effort to rein in the influence of the wealthy has been a complete failure. Campaign-finance limits have only served to protect well-organized incumbents with extensive fundraising operations; super-wealthy challengers who can finance their own campaigns have also proliferated as a result. Indeed, the median net worth of the 94 new members of the 113th Congress was $1.1 million. The median net worth for an American household, by contrast, is $66,740.
It’s not just congressional Democrats who are to blame for this state of affairs. The Supreme Court has had many opportunities to strike down congressional regulation of political speech. In 1975, Senator James L. Buckley (R., N.Y.) and former senator Eugene McCarthy (D., Minn.) filed a constitutional challenge to the 1974 campaign-finance limits. In a per curiam decision, the Supreme Court upheld core parts of the FECA law, because “corruption or its appearance” justified regulation of political speech.
Campaign-finance regulation has been further extended over the years, most recently by the Bipartisan Campaign Reform Act of 2002, a.k.a. McCain-Feingold, which among other things barred the airing of political advertisements paid for by a corporation or a union within 60 days of a general election or 30 days of a primary. Senator Mitch McConnell (R., Ky.), a long-time defender of the First Amendment, filed a constitutional challenge against the bill. In McConnell v. FEC (2003), the Supreme Court sided against him.
Finally, in 2010, advocates of free speech won an important victory in Citizens United. That Supreme Court opinion struck down the McCain-Feingold ban against political ads by corporations and unions, thereby leading to an increased role for non-profit corporations, called 501(c)(4) organizations, that could spend money on political ads without limit. (Citizens United was a 501(c)(4) organization that had sought to air a film — Hillary: The Movie — that was critical of Hillary Clinton.)
President Obama, infamously, scolded the Supreme Court for this decision in his 2010 State of the Union Address. Citizens United “reversed a century of law that I believe will open the floodgates for special interests . . . to spend without limit in our elections,” Obama said. “I don’t think American elections should be bankrolled by America’s most powerful interests. . . . They should be decided by the American people.” (Samuel Alito was seen mouthing the words “not true” in response to several of the president’s erroneous assertions.)
When, in 2012, 501(c)(4) groups founded by right-leaning individuals started complaining about harassment from the IRS, President Obama and his allies weren’t particularly concerned. Indeed, on March 7, 2012, the New York Times published an editorial titled “The I.R.S. Does Its Job,” full-throatedly endorsing the legitimacy of discriminating against non-profit political groups. The Times’ argument? That the IRS “properly” must ensure that such groups are merely promoting the “social welfare” and not engaging in “political campaigning.” Because, of course, wanting to improve the quality of your government bears no relationship to the social welfare.
History has an interesting sense of humor. Our present regime of government speech regulation is a direct result of the Watergate scandal. Forty years later, we find that the IRS has utilized that regime to suppress conservative speech. Many commentators, focusing on the IRS aspect of the case, have called the scandal “Nixonian.” But in Nixon’s day, it wasn’t illegal for people to support the candidates of their choice to the extent of their choice.
Firing certain IRS officials may make some people in Washington happy. But so long as the federal government has the power to regulate free speech, that government will always face the temptation to use its power disproportionately against those whom it dislikes. This has always been the problem with big government, one that the Obama presidency has made worse.
Fortunately, there is a new case on the Supreme Court docket — McCutcheon v. FEC — that may finally overturn the 1974 campaign-finance limits. We’ve learned from the Obamacare litigation that this Court is no reliable defender of constitutional rights. But if we’re lucky, the IRS scandal will give the Court fresh motivation to right the wrong it wrought in 1976. If the Court does its job this time, it could do more to reform the IRS than a hundred televised hearings would. It could address the real scandal of 2013: that Washington can pass a law telling Americans how, and to what extent, they can stand up for their principles.
— Avik Roy is a columnist at NRO. You can follow him on Twitter at @aviksaroy.