The president criticized the Supreme Court for its Citizens United decision during last year’s State of the Union. The case may have helped tea party candidates last November, and the “New Civility” may be retaliation.
Tonight President Obama will give his State of the Union address, and as I look back on last year’s, the only thing I remember was the famous exchange between the president and Justice Samuel Alito. Regarding the Supreme Court’s Citizens United decision, the president said:
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.
Justice Alito took exception to the president’s comments, mouthing “Not true!!”
Hostility toward the Court for Citizens United has been intense. Congressman Peter DeFazio of Oregon wants to impeach Chief Justice John Roberts because of the case. The liberal group Common Cause has asked the Justice Department to investigate Justices Scalia and Thomas for ethical violations by participating in the case. It begs the question: What is the origin of all this anger? Was it really that bad of a decision?
Fast forward to today, and we are on the cusp of a “new era of civility” that sprang out of nowhere in the wake of the Tucson tragedy, in spite of no correlation between political speech and the shootings. Free speech is one of our most treasured liberties, and in a representative form of government, political speech is the most important of all. Thus, when there are two significant events relating to political speech in a short period of time, I have to wonder: Are the two related?
I believe they are. Citizens United expanded political speech; the “new civility” is limiting it. I fear that the new “civility rules” will become like the political correctness rules (“PC”) that have obtained the force of law and effectively squelched meaningful debate about sensitive issues such as race and gender. For better or worse, I think Citizens United created a new atmosphere of open debate that the “new civility” movement is hoping to suffocate.
(Note: I spent two hours today revisiting the five separate opinions and 183 pages of Citizens United to prepare this piece to reacquaint myself with what the case did and didn’t do, and you can read it here if you wish. Hopefully you will find the small insights enlightening.)
What Citizens United Did
To understand what all the fuss is about (as well as what it isn’t), it’s helpful to know what the Supreme Court did and didn’t do in Citizens United. (As background, direct contributions are dollars going straight to a candidate; independent contributions are things like ads, movies, etc.) Prior to the case, this was (roughly) the state of the law regarding corporations and elections:
- Corporations were free to form PACs – separate corporations that could make direct and independent contributions to candidates.
- Media corporations were free to make independent contributions, but not direct.
- All other corporations (profit and non-profit) could not make direct contributions, and regarding independent contributions had the following limitations: They could not engage in political speech using broadcast, cable or satellite communications capable of reaching 50,000 persons within 30 days of a primary or 60 days of a general election.
The majority in Citizens United found the restrictions in italics to be an unconstitutional limit on free speech. That’s it, really.
What is interesting is on pages 26 and 27 of the dissent, written by Justice Stevens, the dissenters argue that the restrictions were so minor and targeted that they didn’t offend the first amendment!
If the reach of Citizens United was so limited, why the outrage?
The Effect of Citizens United
What of the president’s prediction that Citizens United would “open the floodgates for special interests?” Well, that doesn’t appear to be true. Bradley Smith’s editorial here in today’s Wall Street Journal that couldn’t have been more timely. In it he notes the following facts:
- Independent spending was up 11% from the 2006 midterms (Again, Citizens United only dealt with independent spending).
- When it came to direct spending, however, Democrats outspent Republicans by $68 million in last fall’s general elections.
- Republicans had greater individual contributions.
- Democrats received $65 million more in PAC contributions (Dems have been vastly more effective at establishing PACs than the GOP).
Why the continued fuss over Citizens United from the left when Democrats seem to have done quite well with campaign finance last year, especially from corporations?
The answer is two-fold. First, Republicans fared better than Democrats when it came to independent spending, and independent spending was up 11%.
Second, some of the increased independent spending happened during the 60-day run-up to the general election – which was made permissible Citizens United.
Let me make it clearer. Democrats are angry that the Tea Party Express got to run ads in the waning days of the 2010 midterms, where previously they could not have. That is what the furor is really about – a 60-day window of advertising and films (never mind that unions benefit from the same decision).
And to get back to the president’s stated fear a year ago: No one is accusing the grass-roots tea party movement of being the kind of special interest powerhouse that Citizens United would unleash on the electoral process! Yet the pressure continues, in spite of a dearth of evidence of the alleged harm!
Anger over Citizens United, the “New Civility,” and PC
Justice Alito was absolutely correct that what the president said about Citizens United was not true during last year’s State of the Union Address, as the majority opinion expressly stated that the decision had no effect on the ban on foreign political contributions. The president was rallying opposition to Citizens United based on a false premise, and he has gotten it.
That the president falsely stated that American elections would be bankrolled by foreign corporations as a result of Citizens United is every bit as “incendiary” as Rush Limbaugh saying that he hopes the president fails, but it is never cited as an example of the sort of “incendiary” language that the new civility rules will ban.
Free speech restrictions can be dangerous, and I am deeply concerned that the call for “civility” is almost exclusively coming from the American liberals. I am far from the first one to smell a rat when the issue came out of nowhere after Tucson. My biggest fear is that the “new civility” will morph into “NC” and be a legally-enforceable restriction on speech like PC laws, unilaterally administered by the left.
“PC laws?” If you don’t think that PC has elevated itself to full legal status, think again. PC laws have created a verbal minefield that exposes individuals to monetary and other damages enforceable in court. I’m not talking about a white boss calling an employee the “N” word – I’m talking about considerably more subdued verbiage.
I have a bad feeling that “NC” is heading the same direction. How it will manifest itself is hard to say. I have an awful vision of congressional ethics hearings over a congressman’s choice of metaphor. “The congressman said America is a leaky ship! What’s he trying to do? Instigate maritime sabotage?”
Bringing it All Together
Let me put the pieces together. First, the president and the left were angry over Citizens United because PACs are no longer the only corporations that can make independent contributions within 60 days of a general election.
Second, because of Citizens United, the Tea Party Express and other non-PAC corporations engaged in more political speech during the run-up to November than previously allowed.
Third, tea party candidates performed extremely well in November, to the dismay and anger of opponents of Citizens United.
Fourth, a new, informal speech restriction sprang out of the ground seven weeks after the election and in response to an unrelated tragedy: “the New Civility.”
I cannot say that the NC was a preconceived plan that was waiting for the right moment. Certainly it was not sprung at the right moment, but it is gaining steam anyway. I also cannot say that NC was invented to counter Citizens United. But to deny a correlation is to be blind.
It will be a dark day for this country if the NC becomes the next PC. Political speech is critical for our country, and I am very reluctant to sign on to any attempt to limit it, no matter how rosy the intentions may sound.