Supreme Court Rules for First Amendment

When I (somewhat reluctantly) endorsed Senator John McCain (R-AZ) for President in 2008, I spent almost 1/3 of the endorsement criticizing some of McCain’s policy stances and record. One of the items I criticized most harshly was the Bipartisan Campaign Reform Act, colloquially known as ‘McCain-Feingold’ campaign finance reform. The law in question did many things I find objectionable and have long decried as violating the First Amendment.

When the authors of the Bill of Rights wrote “Congress shall make no law . . . abridging the freedom of speech, or of the press,” their intent was to prohibit government restriction of political speech. The fact that it also protects your right to stand on a street corner and scream at people about aliens (for example) is just an added bonus. The core purpose of the First Amendment was to protect political speech in all its forms. The U.S. Supreme Court has fairly-consistently ruled (until recently) that almost any government regulation of ‘political speech’ is invalid.

Donating money to political campaigns is, indeed, an exercise in free speech. If I choose to donate to Representative Whoosit’s reelection campaign, I have a right to do so. If I happen to have an extra $1,000,000 laying around and I feel like supporting Representative Whoosit with it, that’s my right. It’s my money, and (in this case) my spending is an exercise in political speech.

Corporations, unions, non-profits, and other groups also have rights under the First Amendment. Why? Because these organizations are made up of people. Many have in their minds a false dichotomy between ‘business’ and ‘people,’ but in-reality they are one and the same. Corporations, unions, non-profits, and all other [Constitutionally protected] free associations are created, funded, empowered, and directed by . . . people!

Apple, for example, can donate $1,000,000 to their preferred political candidates too if they want (although such donation must be made publicly, so that I may exercise my right to buy competitors’ products if I don’t like how Apple spends its money). Likewise, Apple has a right to purchase their own advertising and say what they want in it (barring a few things, like false advertising). If Apple wants to buy a TV spot telling me about their new MacBooks, fine. If they want to buy a TV spot to try and get me to donate to Haiti earthquake relief, fine. If they want to buy a TV spot to try and get me to vote for a particular candidate or issue, fine. Once again, the only thing they have to do is state somewhere legible that Apple paid for the ad (so I can stop buying from them if I don’t like what they say).

The McCain-Feingold law obliterated many of these rights. It limited individual and corporate donations to political campaigns, prohibited companies from mentioning candidates’ names in ads within 60 days of a general election, and mandated the ludicrous ‘I’m Representative Whoosit, and I approved this message’ statement on the end of official campaign ads. This last mandate is the only one that even approaches Constitutional validity (since we should indeed know the source of political ads and which are actually from the candidate) . . . it goes too far, however, in requiring that notification take any particular form.

During the 2008 Presidential campaign, a conservative group called Citizens United released a documentary called Hillary: The Movie. The Federal Election Commission (FEC) and lower courts ruled that the 90-minute film was a corporate political ad (that, obviously, mentioned a candidate’s name) and, under McCain-Feingold, prohibited its airing on television. Citizens United—with support from such disparate organizations as the American Civil Liberties Union (ACLU) and National Rifle Association (NRA)—challenged the ruling. The case worked its way up to the U.S. Supreme Court, which ruled this week that the government has no Constitutional authority to restrict political speech in this manner.

Some on the left have begun vehement criticism of the ruling, claiming that this is a victory for ‘big business’ at the expense of ‘the people.’ This is that false dichotomy again, especially considering that the ruling also protects labor unions’ and non-profits’ rights and that we don’t have to buy from any particular ‘big business’ if we don’t like how they spend their money (and we don’t have to vote for ‘their’ candidate either).

Others have started calling this ‘conservative judicial activism,’ trying to accuse the ‘conservative wing’ of the Supreme Court of deviating from its ‘strict constructionist’ mantra. This claim is especially specious. Judicial activism (a.k.a., ‘legislating from the bench’) is writing new rights into the Constitution or explicitly redefining the meaning of the words in the document (like, say, intimating a right to kill an unborn child into a document that states that nobody may be deprived of life, liberty, or property without due process). It is not judicial activism to rule in exact compliance with the text, meaning, and intent of the Constitution—even if you have to [supposedly] break with 100 years of Supreme Court precedent to do it.

Look, I don’t fundamentally disagree with the intent behind McCain-Feingold. I don’t like how expensive it’s gotten to run for political office, nor do I like the idea of multi-millionaires, large companies, labor unions, etc., spending insane amounts of money to try and get their favorites elected. But we cannot just ignore the parts of the Constitution we don’t like. If we really want to limit free speech in this way, we have two processes available for amending the Constitution to do so. Let’s use one of them.

Having said that, I’m not convinced that ‘campaign finance reform’ is really necessary any more. I say this for two reasons:

  • First, because of the Internet. With some luck and some grass-roots support on social networking sites, I could reach as many people with my little web site as Apple could with millions of dollars in advertising money. Congressional voting records are free and available for anybody who goes looking, as is all the data about who funded which campaigns. The ‘mainstream media’ isn’t in control of political speech any more. They don’t have a monopoly on information. We are empowered, more so than ever before, to see through and overcome big-spenders in political advertising. The playing field is already leveled.
  • Second, we have (and always have had) the ability to ‘throw the bums out.’ If our Congressmen kowtow to anybody other than their constituents once they’re in office, we have the power to get rid of them when their terms are up. The whole point of ‘campaign finance reform’ was to blunt the impact of so-called ‘special interests’ on the legislative process (even though, as stated earlier, those ‘special interests’ are just . . . people) and reduce corruption. Well, guess what: The ‘special interests’ don’t vote collectively, we do as individuals. Let me see who donated to Representative Whoosit, and let me see Representative Whoosit’s voting record, and I’ll vote against him if I don’t like what I see. An active, informed electorate will not tolerate corruption. Instead of supporting unconstitutional limits on political speech, how about we start being an active, informed electorate?

All-in-all, the Supreme Court made the right decision—though I am disappointed that the so-called ‘liberal wing’ of the court didn’t join-in on the side of civil liberties. I applaud the court for working, albeit slowly, to restore these fundamental Constitutional rights that have been slowly eroded for decades. I hope that they will continue to do so.

Update 1/28/2010: It is worth noting that a strong—and quite valid—criticism of this ruling has been raised in that it potentially opens up political spending in the United States by foreign corporations.

Unfortunately, the law in question did not differentiate between foreign and domestic corporate spending. In striking down the law, the court apparently gave foreign corporations the ability to fund political causes in the United States.

However, foreign corporations do not have a First Amendment right in the United States. As such, Congress can and should prohibit their spending on U.S. political campaign as soon as possible. The law must be crafted in a way to limit foreign spending without limiting U.S. corporations’ First Amendment rights.

Editorial Note: I am a member and regular supporter of the National Rifle Association (NRA). The views expressed in this piece are mine and mine alone and do not necessarily reflect the official positions of the NRA.

Scott Bradford is a writer and technologist who has been putting his opinions online since 1995. He believes in three inviolable human rights: life, liberty, and property. He is a Catholic Christian who worships the trinitarian God described in the Nicene Creed. Scott is a husband, nerd, pet lover, and AMC/Jeep enthusiast with a B.S. degree in public administration from George Mason University.