One year ago today, the U.S. Supreme Court released its opinion in Citizens United v. Federal Election Commission, holding that the government could not prohibit independent political speech by advocacy groups, companies and labor unions.
To mark the occasion, Center for Competitive Politics Academic Advisor Joel Gora published an op-ed in the Wall Street Journal to explain the decades-long struggle between advocates of political freedom and pro-regulation forces.
Citizens United relied upon the principles of another landmark of political freedom: the Supreme Court’s decision in Buckley v. Valeo, handed down 35 years ago on Jan. 30, 1976.
Buckley brought together James L. Buckley, a conservative Republican, and Eugene McCarthy, a liberal Democrat. Both had achieved stunning political upsets by being able to raise and spend the funds necessary to get their insurgent messages out. But Congress thereafter imposed limits on political contributions and spending (through amendments to the Federal Election Campaign Act of 1971) that would have made it impossible for them to run similar outsider campaigns in the future.
The court did uphold limitations on contributions made to candidates because of a concern with the potential for corruption. But it ruled, crucially, that limits on what individuals and groups could spend to get out their own political messages violated the First Amendment.
Buckley was the court’s first major encounter with the clash between campaign-finance limitations and the First Amendment. In ruling that the First Amendment is jeopardized by legislative restraints on political advocacy, the court sounded two themes that have resonated over the decades since then.
First, the government cannot restrict political speech in order to impose some kind of a fairness doctrine on public debate. The court’s answer to that leveling argument was a resounding no: “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas.”
The government’s other argument was that our political campaigns have become too expensive, too strident, too vacuous, too uninformative, and need to be reined in. Here the court’s answer was even more insistent about who has the first and last word on how much political speech Americans get to have: “In the free society ordained by our Constitution, it is not the government but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign.”
As the court has recognized across the decades, despite the byzantine complexity of our restrictive and burdensome campaign-finance laws, the clash between them and the First Amendment presents a rather simple and stark choice. Either the politicians and the government get to decide how much political speech there will be and what form it will take, or the people and the groups they organize get to make that call.
The Columbus Dispatch, the hometown newspaper of Center for Competitive Politics Chairman Brad Smith, also noted the occasion:
Supporters of the decision and others say the criticism is overblown, and that the case has allowed for more competitive races and a broader discussion of issues.
“I think it has worked very well,” said Bradley Smith, former Republican chairman of the Federal Election Commission and a Capital University law professor.
“I don’t think any of the doomsday predictions came to pass.”
