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How the Citizens United ruling freed political speech

By David N. Bossie and Theodore B. Olson
Friday, January 21, 2011;

One year ago today, the Supreme Court issued its landmark decision in Citizens United v. Federal Election Commission. It upheld the First Amendment rights of individuals acting through corporations and labor unions to participate in our political process, and it struck down an oppressive thicket of statutes restricting - and even criminalizing - their political speech.

The case arose in 2007, when Citizens United, a grass-roots membership organization, sought to broadcast a film critical of Hillary Clinton, then a candidate for president. The Federal Election Commission deemed the film too critical to be shown in the weeks before an election; if Citizens United had broadcast it, its officers would have been subject to prosecution and potential imprisonment for up to five years. The Supreme Court struck down this prohibition of corporate and labor union election-time speech about candidates as a violation of the First Amendment. To the court's majority, it was "stranger than fiction for our Government to make . . . political speech a crime."

Stranger still were the unwarranted attacks against the Supreme Court that followed. Most visibly, the president used his State of the Union address to accuse the court of having "reversed a century of law" and "open[ed] the floodgates for special interests - including foreign corporations - to spend without limit in our elections." That statement was astonishing because none of it was true: The oldest decision reversed by Citizens United was 20 years old, not 100, and foreign corporations are prohibited from participating in elections, just as they were before. As for "special interests," many had been spending at an equally furious rate, apparently unnoticed by the president, well before this ruling.

Still, the attacks continued: Sen. Charles Schumer accused the court of attempting to "predetermine the outcome of next November's elections," handing them to "Corporate America and other special interests." And when the November elections brought grim tidings to many Democratic officeholders, those candidates blamed not themselves nor their unpopular policies but the court. "Clearly the Citizens United decision decided this race," said a freshly defeated Rep. Dan Maffei. Sen. Arlen Specter went so far as to blame Citizens United not only for his rejection at the ballot box but also for "effectively undermining the basic democratic principle of the power of one person, one vote."

Serious charges, but as the justices wrote in Citizens United, "[r]hetoric ought not obscure reality." So what is the reality?

Without question, Citizens United has enabled citizen organizations (curiously and disparagingly labeled "outside groups") to assume a larger role in electoral politics. According to the nonpartisan Center for Responsive Politics, citizen groups spent $296.4 million in the 2010 election cycle - slightly less than the $301.7 million spent by such groups in 2008, but more than four times the $68.9 million spent by comparable organizations in the 2006 midterm elections.

Still, the amount citizen groups spent in 2010 pales next to these enormous sums: $1.35 billion spent by the two major political parties and an additional $1.8 billion by candidates for Congress. While citizens making independent expenditures increased their election spending to nearly $300 million in 2010, that remains less than one-tenth of the more than $3 billion spent by political parties and their candidates.

So why all the hysteria from incumbents? Perhaps because independent spending by citizens has shifted away from Democratic candidates. In 2006, liberal interest groups tracked by the Center for Responsive Politics outspent conservative interest groups by a 2-to-1 margin. By 2010, the trend had reversed, and conservative groups were outspending the liberal groups 2 to 1.

We suspect that what most upsets incumbent politicians about Citizens United is not the fact that conservative groups temporarily have gained the upper hand in independent spending. (Does anyone really think labor unions will not try to even the score in 2012?) Instead, what most bothers the political class is that the speech that surged in 2010 was independent. Politicians could not control the message, so they vilified such speech as "unaccountable." Indeed, the Democratic majority was so unnerved that it cobbled together legislation to make such independent speech as burdensome as possible, complete with a misleading mom-and-apple-pie title: the Disclose Act. But this effort to stifle debate unraveled when it was disclosed that the bill included exceptions favoring powerful interest groups.

As the Supreme Court has ruled, Congress should get out of the business of picking winners and losers in the marketplace of ideas and placing its thumb on the scale of federal elections. In Citizens United, the court reminded us that when our government seeks "to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought." The government argued in Citizens United that it could ban books advocating the election of a candidate if they were published by a corporation or labor union. Today, thanks to Citizens United, we may celebrate that the First Amendment confirms what our forefathers fought for: "the freedom to think for ourselves."

David N. Bossie is president of Citizens United. Theodore B. Olson was lead counsel for Citizens United in its lawsuit against the FEC.

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