By Seth Richardson
The Supreme Court was startled to wakefulness after a hundred-year Rip Van Winkle slumber in it’s consideration of Citizens United v. FEC, in which a movie critical of Secretary of State Hillary Clinton, set to be released during her run for the presidency, was challenged on the grounds that it violated the McCain-Feingold Campaign Finance Act. “That’s pretty incredible,” said Justice Samuel A. Alito Jr., in response to an assertion by a government lawyer that drew an audible gasp from the spectators, that the law prohibits publishing a book paid for by a corporation that advocates the election or defeat of a political candidate. Never before has the Court sanctioned prior restraint or censorship of a book that’s not obscene, and it appeared shocked that it might have inadvertently allowed such a legal argument to slip by them.
Congress has a long history of meddling with free speech when it comes to political campaigns. As early as 1905 Progressive President Teddy Roosevelt argued that contributions from large corporate interests were tainting the election process.
The Tillman Act of 1907 and the Corrupt Practices Act of 1910 prohibited banks and corporations from donating to federal election campaigns, and was the result of Roosevelt’s pressure. Named after Democrat Sen. Benjamin “Pitchfork Ben” Tillman of South Carolina, who, it happens, was censured by the Senate for physically attacking another senator on the Senate floor (as opposed to Joe Wilson’s minor verbal heckling), the Tillman Act was in part Democrat retribution for the 1896 election of William McKinley.
McKinley’s campaign was funded largely by Cleveland iron-and-coal industrialist Marcus Alonzo Hanna, who raised some $4 million in campaign funds for McKinley, which would be about $82 million in today’s dollars. Not a huge sum compared with the nearly one billion dollars spent by Obama, but at the time it was a staggering sum. McKinley, assassinated in 1901 by anarchist Leon Czolgosz, was followed by Teddy Roosevelt, who is acknowledged as the progenitor of the Progressive era of American government, which we’ve not yet been able to recover from.
Historically speaking however, the Supreme Court had usually held that the best arbiters of the truth or falsity of a campaign claim is the People. The rhetoric we hear today is nothing compared to the vitriol published in the early years of the Republic. The Court always felt that the People were intelligent enough to sort out the wheat from the chaff and the sheep from the goats, and generally declined to get involved in regulating political speech. But the Court went to sleep in 1907 and is only now waking up to the unintended consequences of trying to be paternalistic and patronizing towards the intellectual capacity of the People. A somnolent Court snoozed its way past the First Amendment in 2002, with its ratification of the McCain-Feingold Bipartisan Campaign Reform Act, which drove a stake through the heart of free speech in political campaigns. Although subsequent cases have overturned some provisions of the Act, it’s still illegal for a corporation or entity using corporate money to broadcast “electioneering communications” within 60 days of a federal election. This includes express advocacy corporations like the NRA and the Sierra Club.
The practical effect of this law is that the free flow of information and opinion about candidates and issues has been severely inhibited by Congress, while the Court pillowed its weary head on the Constitution and snored away. But when it came to the Court’s attention the other day that the Federal Election Commission’s attorneys believe that the law allows them to ban books that contain “electioneering communications,” the Supremes snorted, jerked half-awake, sat up and began to take notice.
It may be that the Court has finally shaken the cobwebs from its collective conscience and is preparing to take hold of the tiller of the drifting ship “Justice” and chart a course back towards the founding principles of our Republic. It’s too early to be entirely confident, but let’s hope that the Court will come to the realization that there is a rational distinction to be drawn between for-profit commercial corporate meddling in elections and individuals banding together under a non-profit corporate banner formed expressly for the purpose of political advocacy, which is their sovereign right.
For-profit commercial corporations should have no rights whatsoever to say anything about any election, candidate or ballot issue. Such corporations are artifacts of the state, not human beings, and only human beings are allowed to vote. Therefore, only human beings should be permitted to speak about elections, although they should be allowed to speak collectively through organizations which represent them before the government. And when human being speak about politics and elections, they must be allowed completely unfettered political speech. Political speech is the most important category of speech we as citizens have a right to express, and nothing should be barred in the political arena, nothing at all, so long as it is spoken or written by an individual and not a commercial interest.
The Court needs to once again place its trust in the wisdom and intelligence of the People, and get government completely out of regulating campaign and political speech by individuals or the non-profit organizations that represent them. The idea that the government can censor or suppress a book, or a film, merely because it expresses political opinion or advocacy is utterly repugnant to the foundations of the Republic. We, the People are perfectly capable of discerning truth from fiction in campaign rhetoric, we neither need, nor want, nor will tolerate the government interfering in our political free speech.