The Supreme Court’s recent decision in Citizens United v. FEC is one of the most important First Amendment decisions in a generation and one of the most controversial. In it, the Supreme Court struck down a law that banned corporations from spending their own money on speech that advocated the election or defeat of candidates. In the process, the Court overturned portions of McConnell v. FEC, a case in which the Supreme Court, a mere six years ago, upheld McCain-Feingold, one of the most sweeping restrictions on campaign speech in history.
In many ways, Citizens United is a ringing endorsement of First Amendment rights, and it is certainly cause for optimism about the future of free speech. But the divisions on the Supreme Court over the case and the reactions from Democrats in Congress, the media, and the left in general indicate that Citizens United will not be the last word on the matter.
In this respect, the controversy is not surprising: Citizens United dealt a serious blow to the further growth of campaign finance laws, supporters of which are determined and outspoken. But the controversy is shocking from the standpoint of the law at issue: It prevented a nonprofit group from distributing a film that criticized a candidate, Hillary Clinton, during her run for the presidency in 2008. During oral arguments in the case, the government admitted campaign finance laws could be applied to prevent corporations from publishing and distributing not only films but also books that said the wrong things during election cycles.
Banning films and books?
The First Amendment states: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Those simple and elegant words would seem to leave no room for a law, passed by Congress, that prevents corporations from spending money to distribute films and books. So, how did we get here?
The answer is that as important as the First Amendment is to America, few Americans have grasped its actual meaning. The amendment properly protects each individual’s inviolable right to freedom of speech—regardless of whether anyone’s exercise of that right serves a “social purpose.” But over time, and especially in the 20th century, the First Amendment came to be viewed by most intellectuals, and by the Supreme Court, in almost exclusively instrumentalist terms.1 Its primary purpose, on the instrumentalist view, is to facilitate the collective “search for truth” allegedly necessary to support “representative self government.”2 In other words, freedom of speech serves not the goals of individuals but those of “society.”
Intellectuals, courts, and commentators have debated which particular “social goals” the First Amendment should serve, but few in the 20th century have disagreed that the First Amendment’s purpose is primarily instrumental. Seen this way, the First Amendment is effectively a blank slate. And in the early and mid-20th century, so-called “progressives” were happy to write their goals onto it.
Led by intellectuals such as John Dewey and Herbert Croly, the progressives actively opposed the limited, constitutional government established by America’s founders.3 Progressives held that the individual’s highest moral purpose is to serve the “greater good” of society. They opposed private property and capitalism, sought to redistribute wealth, and believed that inequalities among citizens justified overriding constitutional limits on government action.4 Because businesses and the wealthy often lobbied and campaigned against the progressives’ efforts, the progressives championed early restrictions on lobbying and campaign spending.
Speech, they said, should be protected only to the extent that it serves the “public interest”—which, in their conception, did not include the interests of businesses and the wealthy.5 The progressives pejoratively dubbed the interests of businesses and the wealthy “special interests”—interests contrary to the “public interest”—and held that the First Amendment did not protect speech in the service of such interests.6
In the modern era, the progressive who most influenced campaign finance laws was John Gardner, the founder of Common Cause.7 Gardner shared the early progressives’ disdain for “special interests,” which he believed were thwarting the progressives’ agenda by using money to influence the political process. “All citizens should have equal access to decisionmaking processes of government, but money makes some citizens more equal than others,”8 Gardner argued. “It isn’t just that money talks. It talks louder and longer and drowns out the citizen’s hoarse whisper.”9 Gardner and Common Cause were instrumental in crafting and passing the first modern campaign finance reform law in the early 1970s,10 which set the tone for much of what would follow. . . .
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Acknowledgment: The author would like to thank Craig Biddle for his helpful edits and suggestions on this article.
1 Calvin R. Massey, “The Influence of the Foundational Paradigms of Individualism, Pluralism, and Cultural Authoritarianism upon Freedom of Expression,” in Speaking Freely: The Case Against Speech Codes, edited by Henry Mark Holzer (Studio City, CA: Second Thoughts Books, 1994), pp. 46–60.
2 Massey, “Foundational Paradigms,” pp. 46–60.
3 John Samples, The Fallacy of Campaign Finance Reform (Chicago: University of Chicago Press, 2006), pp. 43–48; Richard A. Epstein, How Progressives Rewrote the Constitution (Washington, D.C.: Cato Institute, 2006), pp. 7–9.
4 Samples, Fallacy of Reform, pp. 43–48, 55; Epstein, How Progressives Rewrote the Constitution, pp. 7–8.
5 Samples, Fallacy of Reform, p. 55; Epstein, How Progressives Rewrote the Constitution, pp. 7–8.
6 Samples, Fallacy of Reform, pp. 50, 54–55.
7 Samples, Fallacy of Reform, pp. 59–64.
8 John Gardner, In Common Cause: Citizen Action and How it Works, quoted in Samples, Fallacy of Reform, p. 62.
9 Samples, Fallacy of Reform, p. 62.
10 John Gardner: Uncommon American, available at http://www.pbs.org/johngardner/chapters/6.html.
11 Owen Fiss, The Irony of Free Speech (Cambridge, MA: Harvard University Press, 1996), p. 4 (emphasis added).
12 Anthony Corrado et al., The New Campaign Finance Sourcebook (Washington, D.C.: Brookings Institution Press, 2005), pp. 20–22.
13 Corrado et al., Campaign Finance Sourcebook, pp. 21–23.
14 Corrado et al., Campaign Finance Sourcebook, p. 23.
15 Buckley v. Valeo, 424 U.S. 1 (1976) (emphasis added).
16 Buckley, 424 U.S. at 11.
17 Buckley, 424 U.S. at 19 n. 18.
18 Buckley, 424 U.S. at 19.
19 Buckley, 424 U.S. at 20–22.
20 Buckley, 424 U.S. at 26–29.
21 Buckley, 424 U.S. at 48–49.
22 Buckley, 424 U.S. at 47–48.
23 Buckley, 424 U.S. at 45–47.
24 Buckley, 424 U.S. at 48–49.
25 “The Half-Dead Monster,” Wall Street Journal, February 2, 1976.
26 Samples, Fallacy of Reform, p. 45.
27 Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance Reform (Princeton: Princeton University Press 2001), p. 23.
28 Bradley Smith, “The Myth of Campaign Finance Reform,” National Affairs, no. 2, Winter 2010. Like the federal bans on corporate campaign spending, state bans were also motivated in part by a desire to prevent political outcomes corporations supported. See Smith, Unfree Speech, p. 23.
29 Austin v. Michigan Chamber of Commerce, 494 U.S. 660 (1990).
30 Austin, 494 U.S. at 656.
31 Buckley, 424 U.S. at 26–27.
32 Buckley, 424 U.S. at 27–28. See also Nixon v. Shrink Mo. Gov’t Pac, 528 U.S. 377, 389 (2000).
33 Austin, 494 U.S. at 658 (internal citations and quotation marks omitted).
34 Austin, 494 U.S. at 661.
35 Austin, 494 U.S. at 659.
36 Austin, 494 U.S. at 660.
37 Buckley, 424 U.S. at 42–44.
38 Corrado et al., Campaign Finance Sourcebook, pp. 37–39.
39 Samples, Fallacy of Reform, p. 3.
40 Samples, Fallacy of Reform, p. 3.
41 Corrado et al., Campaign Finance Sourcebook, pp. 37–39.
42 Corrado et al., Campaign Finance Sourcebook, p. 42.
43 Senator John McCain, 107th Cong., 1st Sess., Congressional Record (2001), 147:S3116.
44 McConnell v. FEC, 540 U.S. 93 (2003).
45 McConnell v. FEC, 540 U.S. at 136–137, 143–145.
46 McConnell v. FEC, 540 U.S. at 193–194.
47 Ayn Rand, “The Anatomy of Compromise,” in Capitalism: The Unknown Ideal (New York: Signet, 1967), p. 145.
48 Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Alfred A. Knopf, 2005), p. 47 (internal quotation marks omitted).
49 Breyer, Active Liberty, p. 47.
50 Citizens United, slip op. at 18.
51 Citizens United, slip op. at 2–4.
52 Citizens United, slip op. at 18.
53 Citizens United, slip op. at 7, 19.
54 Citizens United, slip op. at 9–10.
55 Citizens United, slip op. at 18.
56 Citizens United, slip op. at 33, 35–37.
57 James Madison, “Virginia Resolutions Against the Alien and Sedition Acts,” (December 21, 1798), reprinted in James Madison Writings (Jack N. Rakove, ed., 1999), p. 590.
58 Citizens United, slip op. at 23.
59 Citizens United, slip op. at 23.
60 Citizens United, slip op. at 40.
61 Citizens United, slip op. at 23.
62 Citizens United, slip op. at 45.
63 Citizens United, slip op. at 38 (internal citations and quotation marks omitted).
64 Citizens United, slip op. at 25–28.
65 Citizens United, slip op. at 39.
66 Citizens United, slip op. at 43.
67 Citizens United, slip op. at 44.
68 Citizens United, slip op. at 33.
69 “GOP Doesn’t Run 2010 Census, But Hopes to Count Your Money,” Post Standard (Syracuse, NY), January 24, 2010, p. A9.
70 President Barack Obama, State of the Union Address, January 27, 2010.
71 “The Court’s Blow to Democracy,” New York Times, January 21, 2010.
72 Countdown with Keith Olbermann (MSNBC television broadcast January 21, 2010), available at http://www.msnbc.msn.com/id/3036677/ns/msnbc_tv-countdown_with_keith_olbermann#34984984.
73 Brown v. Bd. of Education, 347 U.S. 483 (1952).
74 Lawrence v. Texas, 539 U.S. 558 (2003).
75 Indeed, many of Citizens United’s harshest critics—including Justice Stevens, who wrote the dissent—have long advocated overturning the portions of Buckley that rejected limits on independent expenditures. See Randall v. Sorrell, 126 S.Ct. 2479, 2506 (2006) (Stevens, J., dissenting). These critics can hardly complain about the majority overturning campaign finance decisions when they wish to do the same to achieve precisely the opposite result.
76 Brief for the Federal Election Commission, p. 43, SpeechNow.org v. FEC, No. 09-5342 (D.C. Cir. Dec. 15, 2009).
77 Smith, Unfree Speech, p. 23; Myth of Campaign Finance Reform.
78 Samples, Fallacy of Reform, pp. 62–63.
79 Samples, Fallacy of Reform, pp. 3–7, 36.