Hysteria and hyperbole no substitute for facts in Citizens United

September 8, 2009   •  By Sean Parnell
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Continuing campaign finance “reformers” pattern of dramatically misunderstanding what is at stake in Citizens United, E.J. Dionne of the Washington Post yesterday unleashed a hysterical and factually-challenged column in advance of tomorrow’s crucial re-argument in front of the Supreme Court.

Early on, Dionne claims that “The court is considering eviscerating laws that have been on the books since 1907 and 1947 — in two separate cases — banning direct contributions and spending by corporations in federal election campaigns.”

The problem, of course, is that the Supreme Court is not “…considering eviscerating laws that… [ban] direct contributions… by corporations…” Only independent political speech by corporations (and unions) at stake in Citizens United. Claiming otherwise is to show that one has not bothered to let facts get in the way of a good hysterical rant.

Dionne continues his Bizarro World Joe Friday act (“Just leave out the facts, Ma’am”) when he states that there are “…precedents, dating to the 1976 Buckley campaign finance ruling, that the court would set aside if it were to throw out the prohibition on corporate money.” Here again, Dionne gets it completely backward. Buckley very explicitly ruled that independent political spending could not be limited (much less banned) because it poses no threat of corruption — and corruption or the appearance of are the only acceptable reasons for limiting money spent on political speech.

But the greatest twisting of facts is Dionne’s assertion that undoing the Austin decision (and the section of McConnell v. FEC that gave a pass to the “electioneering communications” restrictions in McCain-Feingold) would somehow run counter to precedent, something Chief Justice Roberts pledged a great deal of respect for in his confirmation hearings.

Dionne writes: “…there is one member of the court who has spoken eloquently about the dangers of ignoring precedents.

‘I do think that it is a jolt to the legal system when you overrule a precedent,’ he said. ‘Precedent plays an important role in promoting stability and evenhandedness…’

This careful jurist continued: ‘And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.’ He paraphrased Alexander Hamilton as saying in Federalist 78, ‘To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.’

Chief Justice John Roberts, the likely swing vote in this case, was exactly right when he said these things during his 2005 confirmation hearings. If he uses his own standards, it is impossible to see how he can justify the use of ‘arbitrary discretion’ to discard a well-established system whose construction began with the Tillman Act of 1907.”

Dionne’s error is in believing that overturning Austin would be an upending previous precedent, when in fact it would simply eliminate the decision that stands contrary to almost all other campaign finance precedents. As CCP Chairman Bradley A. Smith wrote previously, “…Austin has long been the odd man out in campaign finance jurisprudence, the case that doesn’t fit the mold.”

And of course Dionne doesn’t trouble himself to find out how things have worked out in the two dozen or so states that allow direct corporate contributions to candidates, let alone independent expenditures.

The general thrust of Dionne’s column, along with most of the “sky is falling” Chicken Littles of the campaign finance “reform” crowd, is that allowing the political speech of corporations and unions to be heard by American citizens represents a grave threat to the republic, presumably because the public might end up misinformed by these speakers (i.e. vote in ways the “reformers” don’t approve of).

Perhaps. But if Dionne is truly concerned about the American public being misinformed on political matters, perhaps he ought to start by applying a little bit of fact-checking to his own writing before he demands that others be excluded from the public arena before they have a chance to misinform?

A quick p.s. from Brad: 

Dionne writes: “I don’t have the space to cite all the precedents the court would have to set aside, going back to the Buckley campaign finance ruling 1976, if it threw out the prohibition on corporate money.” 

I don’t know if Dionne had space to cite them all or not, but if you’re wondering how many precedents that is, it’s two:  McConnell v. FEC and Austin v. Michigan Chamber of Commerce. 

Sean Parnell

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