Campaign Finance Myths
Lots of untruths are being spread by the president.
Nov 29, 2010, Vol. 16, No. 11 • By WILLIAM R. MAURER
In its criticism of Citizens United, the New York Times (ironically, a for-profit corporation that routinely uses its general treasury funds to advocate for the election or defeat of federal candidates) said the following: “Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights.” Similarly, Representative Chris Van Hollen stated that Citizens United “is a decision that equates, for the purposes of expending monies in elections, says [sic] that corporations equal individuals. I think it is an un-American decision. . . . ” Justice Stevens also accepted this argument in his dissent in Citizens United, arguing that the “speech” referred to in the First Amendment applies only to “oral communications by individuals,” and that because corporations are “artificial entities,” they “do not have the technical capacity to speak.”
Of course, this conclusion ignores the actual words of the First Amendment. The First Amendment provides: “Congress shall make no law . . . abridging the freedom of speech.” It does not say, “Congress shall make no law abridging the freedom of speech of individuals.” It does not say, “Congress shall make no law abridging freedom of speech, except for two or more people.”
To paraphrase Hugo Black, “No law” means “no law.” Put simply, the First Amendment is a restriction on government power. The First Amendment restricts the ability of government to restrict the rights listed in the amendment—it certainly does not create a limitation on those rights so that they apply only to individuals acting alone.
Taken to its logical conclusion, the belief that “only individuals have constitutional rights” would have serious consequences for the economic health of the nation. If only individuals are protected by the Bill of Rights, can the government seize Apple’s intellectual property without paying for it, regardless of the Fifth Amendment? Can the government quarter troops at the AFL-CIO’s headquarters, despite the Third Amendment? Can it search the ACLU’s offices without a warrant because the Fourth Amendment does not apply?
Corporations and unions are not individuals, but they are made up of individuals who have banded together for common purposes. Marriages, partnerships, neighborhood organizations, and rock groups also are not individuals, but rather associations of individuals who have decided that acting cooperatively is more effective than acting alone. To hold that First Amendment rights dissipate the minute one person begins to act in concert with another would neuter the Bill of Rights as an effective check on unrestrained government power. As Chief Justice Roberts put it in his concurrence in Citizens United, “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”
It is clear that the attacks on the Court for the Citizens United decision rest on specious and factually dubious grounds. This latticework of myth is necessary to avoid the simple truth that the law at issue in Citizens United violated the First Amendment and gave the government unprecedented power to criminalize political activity. During oral argument, lawyers for the government argued that the law gave the government the ability to ban books, pamphlets, and political signs if they were produced by the wrong people using funds from the wrong source. It is inconceivable that a law passed by Congress that made it a felony to publish a book or pamphlet was not a law “abridging the freedom of speech.”
No amount of myth can cover up that fact.
William R. Maurer is executive director of the Institute for Justice Washington Chapter and lead attorney in IJ’s legal challenge to Arizona’s “Clean Elections” system.