Nexus: Chapman's Journal of Law and Public Policy

“America isn't easy. America is advanced citizenship. You gotta want it bad, 'cause it's gonna put up a fight. It's gonna say "You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free?” These are the words of the actor Michael Douglas playing the role of President of the United States in The American President. Now, while Hollywood often over-dramatizes real life, this scene focuses on very salient point; free speech isn’t just about my right to say what I want to say, it’s about the right of everyone to say what they want to say. Many of us invoke the concept, the right, of free speech willy-nilly but do we really consider what that means?

The United States Supreme Court in Citizen’s United v. Federal Election Commission addressed the issue of free speech as it pertains to certain corporate expenditures in the context of elections. The High Court held that a provision of the Bipartisan Campaign Reform Act prohibiting unions, corporations and not-for-profit organizations from broadcasting electioneering communications within 60 days of a general election or 30 days of a primary election violated the free speech clause of the First Amendment to the United States Constitution. The Bipartisan Campaign Reform Act of 2002 (BCRA) (aka McCain–Feingold), 2 U.S.C. § 441b, prohibited corporations and unions from using their general treasury funds to make an electioneering communication or for independent expenditures, defined as speech that expressly advocates the election or defeat of a candidate and that is made independently of a candidate's campaign. However, like almost every other piece of federal legislation, McCain-Feingold was full of holes, some of them large enough to drive a Mack Truck through. For example, under McCain-Feingold, corporations and unions were free to spend unlimited amounts of money on voter registration and get-out-the-vote activities directed at their stockholders, employees and members. Also within the purview of corporate “political” spending was setting up and running 527 organizations. Though 527 organizations cannot endorse a candidate, receive party funding, or collaborate with a candidate's campaign, there are no restrictions on opposing a candidate as long as the 527 organization is acting as a free agent. And while they might be funneling more money into campaigns through some of these independent groups, corporations had the right to make such contributions before the ruling. So, really and truly, the Court’s decision in Citizen’s United did not doom the election landscape as much as some would make out.

Opponents of the Citizen’s United decision have made apocalyptic predictions that elections will now become bought and paid for by corporations and that those same corporations will control the single hair of a horse tail for incumbents sitting beneath Damocles sword. Opponents fear that the voice of the people will be drown out by special interests and that the needs of individual Americans will play second fiddle to the desires of corporations. This concern is misplaced in that it presupposes that the American people are incapable of making their voices heard and that these same people are unable to avoid being persuaded by the onslaught of political ads we have all come to know and love. In this modern technological age, almost every voter has easy (if not instant) access to the Internet, with its blogs, social and business networking sites, and a myriad of other resources for registering complaints and advocating ideas. With this reality, is there really as strong an argument that the voices of the individual citizenry, the voices of the poor, tired and huddled masses will go unheard? Even President Obama admitted, though I am certain it was unintentional, the unlikelihood that the Citizen’s United decision would defeat the will of “the People.” In a recent radio address, the Commander in Chief encouraged the People that they “can make sure that the tens of millions of dollars spent on misleading ads do not drown out your voice, because no matter how many ads they run -- no matter how many elections they try to buy -- the power to determine the fate of this country doesn't lie in their hands. It lies in yours." That’s right Mr. President. It is in our hands. It has always been in our hands and it will continue to be in our hands.

At the end of the day, the reality is that the money is coming in regardless of how much legislation is thrown at it. Therefore, the question then becomes whether or not we are willing to start denying fundamental rights in an effort to stop the cash. I say we err on the side of freedom and stop underestimating the ability of the People to sort through muck.

References cited:

Citizens United v. FEC, 130 S. Ct. 876 (U.S. 2010)

http://www.opensecrets.org/527s/types.php

http://www.whitehouse.gov/the-press-office/2010/09/18/weekly-address-president-obama-castigates-gop-leadership-blocking-fixes-