Bench Memos

Citizens United Decision Means More Free Speech

Supreme Court observers have been waiting a long time for the decision in Citizens United v. FEC, the “Hillary: The Movie case” that was first argued last March, reargued in September, and finally decided today. For fans of the First Amendment, it was worth the wait.

First, some background. During the 2008 election, the nonprofit group Citizens United wanted to make a film available on cable-on-demand that was critical of then-candidate Hillary Clinton. But because Citizens United is organized as a corporation, its speech was banned under the McCain-Feingold campaign-finance law. Citizens United challenged this ban, and on Thursday, Jan. 21, 2010, the U.S. Supreme Court handed down its ruling, striking down this provision of McCain-Feingold and reversing a previous ruling — Austin v. Michigan Chamber of Commerce — that permitted the government to ban corporations and labor unions from promoting or opposing political candidates.

The ruling represents a tremendous victory for free speech and a serious blow to proponents of campaign-finance “reform,” who have roundly denounced the ruling and have all but predicted the downfall of the Republic as a result. But the reformers’ rhetoric is just that; the Court’s ruling will simply result in a more diverse mix of political speech, and that is a good thing for American democracy.

The ruling in Citizens United is a straightforward application of basic First Amendment principles:  “When Government seeks to use its full power . . . to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

Despite this logic, the campaign-finance clique has denounced the ruling as “judicial activism” and claimed that it contradicts a century of laws banning corporate money in elections. But this view of history is simply wrong. Although corporations have been prohibited from giving money directly to candidates since 1907, bans on independent corporate spending in elections did not go before the U.S. Supreme Court until 1990 in Austin v. Michigan Chamber of Commerce­ – a mere 20 years ago. The Court upheld the prohibition by a narrow 5–4 vote, but Austin was hardly a bedrock of constitutional law — indeed, it was the first case in Supreme Court history to uphold a limit on independent political speech, which the Court in Citizens United correctly recognized as “a significant departure from ancient First Amendment principles.” By reversing Austin, the Court has now corrected its error and brought the regulation of corporate and union speech in line with the rest of First Amendment doctrine.

When you hear reformers howl about the downfall of elections as a result of this ruling, consider that states like Missouri, Utah, and Virginia already allow corporations to spend unlimited amounts on political ads, and there’s no evidence that these states’ elections have been “corrupted” or “overwhelmed” by this additional political speech. And that is not surprising. After all, no matter how much money is spent to promote or oppose candidates, voters remain free to disagree with those views. And they often do, as well-financed but failed candidates Ross Perot, Steve Forbes, Mitt Romney, and, more recently, Jon Corzine can attest.

But the reformers are not content to leave something as important as election results to voter free will. Their real complaint is not with the Supreme Court or its ruling in Citizens United, but with the First Amendment itself, which prohibits their efforts to empower government to micromanage political debate. The Founders saw the folly of that approach and gave us a First Amendment that rejected it in clear terms: “Congress shall make no law . . . abridging the freedom of speech.” Despite the reformers’ complaints, the ruling in Citizens United is faithful to the First Amendment, and that, ultimately, is the only test that matters.

— Paul Sherman is an attorney with the Institute for Justice, which litigates free-speech cases nationwide and filed a friend-of-the-court brief in the Citizens United case.

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