A professional campaign of fear and loathing is in full effect post the Supreme Court’s ruling in Citizens United. While some controversy surrounds the Court because of its strong stance in protecting the First Amendment, a great whimpering of fear and emotional confusion surrounds what really happened.
For starters, Citizens United v. FEC is the election law equivalent of Brown v. Board of Education, not “the worst Supreme Court decision since the Dred Scott case,” as Rep. Alan Grayson of Florida and MSNBC talking head Keith Olbermann howled.
No longer will millions of citizens be under the control of speech czars sitting on E Street in Washington just because they hoped to speak. Citizens United guts the Commission of much of its prosecutorial authority to go after common citizens banded together, sometimes in corporate form, daring to share their opinions publicly. This is something we all should celebrate.
It does well to remember that this was a renegade Commission who blatantly disregarded prior Supreme Court precedent in its regulations and day-to-day operations. After losing in Wisconsin Right to Life over a similar issue, the Supreme Court chastised the Commission for being reckless in penalizing speech and for creating incomprehensible speech regulations. Wholly ignoring the mandate of the Court, the FEC promulgated ornate, two-prong, eleven factor tests to decide if speech was, in FEC vernacular, “permissible” or banned. At the end of the day, these byzantine tests did a great job of making work for the FEC while keeping average citizens silenced.
The stripping of any agency’s authority to engage in speech-purity fishing expeditions — as was the stuff of regular FEC investigations — is a welcome event in civil society. From the Commission’s numerous failed investigations, like George Soros’ book tour, to its strong-armed tactics to coerce settlements out of citizen-candidates who made paperwork mistakes, citizens of any ideological stripe should celebrate the timely reduction of this Commission’s authority.
Beyond free speech itself rests another hobgoblin of mistrust and panic: corporations and the electoral process. Indeed, some commentators are predicting the imminent demise of American democracy with great fanfare. Believing that letting corporations run advertisements about elections for office will somehow corrupt American politics, calls to amend our most cherished First Amendment have even been floated.
In times like these, it is wise to reflect upon the words of our founding generation, and it was James Madison who understood that competing factions were a healthy component of free society. Sure, sometimes speech will be messy, expensive, and perhaps even inappropriate. But the solution is not a meddling federal agency with a $63 million annual budget to decipher “pure” speech from “sham” speech or “proper” corporate speakers from the “improper.” Instead, the real genius of the American experiment in self-governance is a trust in the American people themselves. At the Center for Competitive Politics, we place our faith in the ability of everyday citizens to hear and evaluate arguments from all sorts of speakers: AFL-CIO, Exxon, the trial bar, National Right to Life, the Sierra Club, and countless others. For it is ultimately the people who are sovereign and must decide the merit of contending claims over public policy and public servants.
As Justice Black recounted in the first Madison lecture at the New York University School of Law in 1960, the Framers knew that “free speech might be the friend of change and revolution. But they also knew that it is always the deadliest enemy of tyranny. With this knowledge they still believed that the ultimate happiness and security of a nation lies in its ability to explore, to change, to grow and ceaselessly to adapt itself to new knowledge born of inquiry free from any kind of governmental control over the mind and spirit of man.”
With the release of Citizens United, we have moved our republic one significant step closer to this realization, which is a cause for celebration — not panic — among a free people.