If you don’t like what someone has to say, you can attack his right to say it. That is the approach President Obama and fellow Democrats have adopted when it comes to political advertising by businesses.
In his State of the Union address last January, the president openly challenged a Supreme Court ruling that said corporations and labour unions have the right to express their opinions in the pivotal weeks leading up to elections. Obama called on Congress to “correct” some of the problems he saw in the ruling.
Prior to the 5-4 decision in Citizens United v. Federal Election Commission, corporations and labour unions were prohibited by the McCain-Feingold Act from using their general treasury funds to publicly distribute any “electioneering communications” within 30 days of a primary election or within 60 days of a general election. That suited most Democrats just fine, since it muted the voice of business interests. organised labour, meanwhile, does its most valuable political work in get-out-the-vote drives, not in political advertising – so Obama’s labour allies were not hampered as much as businesses were by McCain-Feingold.
Critics of the Citizens United decision argued that if corporations were allowed to spend freely on elections, they would drown out the opinions of individual citizens. MoveOn.org recently attacked Target Corp. when it exercised its right to support a candidate it thought would help the business community. But, despite all of the whining by MoveOn and similar organisations, Citizens United is unlikely to be reversed anytime soon. In fact, there is nothing Congress can do to “correct” Supreme Court decisions that are determined on constitutional grounds, as Citizens United was.
In the face of this reality, those who would rather not hear the full range of political opinions have manufactured the issue of foreign financing of political advertising. In two campaign stops early this month, Obama accused the U.S. Chamber of Commerce of using membership fees from foreign affiliates to fund political advertisements attacking Democratic candidates that the Chamber sees as anti-business. “Just this week, we learned that one of the largest groups paying for these ads regularly takes in money from foreign corporations,” Obama said, referring to a post on ThinkProgress, a blog affiliated with the centre for American Progress. The blog was the first to raise questions about the Chamber’s funding.
The Chamber, which represents American businesses of all sizes, has spent $25 million this election cycle. It’s not hard to see why the current president, with his record of insulting “fat cat bankers” and blaming Wall Street for most of the country’s problems, is displeased.
Current law prohibits the use of foreign money for political advertising within the United States, and these rules were not at issue in Citizens United. But so far there is no evidence that the Chamber of Commerce used funds from abroad for political purposes. While the organisation does collect membership dues from foreign affiliates, it says it uses this money exclusively for programs outside of the U.S. The Chamber says its foreign income makes up a tiny fraction of its total revenue, contributing only about $100,000 to an overall operating budget of more than $200 million.
The real issue, however, is not whether the Chamber of Commerce somehow let a little foreign money leak into its political advertising budget, but whether it would have done anything wrong if it had. I believe the answer is no. And I believe the Supreme Court will agree, if and when it is asked.
Obama and his fellow critics of Citizens United have argued that the Supreme Court “gave” corporations “the same rights as individuals.” That is an incorrect way to frame the issue. The former constitutional law professor who occupies the White House certainly knows this, even if much of the public is less versed in legal scholarship.
A basic precept in American legal tradition, dating to the Declaration of Independence, is that “rights” belong to everyone at birth, and are merely protected – not granted – by the government. The Declaration of Independence is not law, but the Constitution is. This concept was incorporated in the Bill of Rights through the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Citizens United was decided under the First Amendment, whose full text is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment does not distinguish between speech by individuals versus that of corporations, which is what the Supreme Court held in Citizens United. It doesn’t distinguish between speech by Americans or foreigners, or between domestic and foreign corporations. Speech is speech. It is all protected from restriction by the government. I see no reason why the same Court majority that decided Citizens United would not uphold the right of a foreign individual or corporation to express a view on an American political race through advertising. Americans, to the extent they are interested in such views, have as much of a right to hear them as the speakers have to express them.
Opponents have argued that allowing such advertising would lead to foreign entities, corporations or even governments “buying” U.S. elections to promote their own agendas. The issue of outsourcing has been cited, with supporters of strict campaign finance laws claiming that foreign entities would support candidates who encourage U.S. companies to move jobs overseas, to the detriment of American workers.
No one is suggesting allowing foreigners to vote, or to contribute cash to a candidate’s political campaign. Foreigners have a right to contribute only ideas. If they want to use their money to try to get American candidates who support outsourcing elected, they must do so by convincing American voters that outsourcing would be beneficial for them.
If elections were decided purely by spending, we wouldn’t need to vote. We would just look at campaign fundraising reports and announce the winners. We could declare Meg Whitman the victor right now in the California gubernatorial race. Michael Huffington would have knocked Dianne Feinstein out of the U.S. Senate in 1994. Hillary Clinton, not Barack Obama, would have won the Iowa caucuses in 2008.
But, in each of these cases, voters stepped into the booths considering ideas, not money. If a candidate’s ideas aren’t convincing to voters, it doesn’t matter whether that candidate and his supporters spend hundreds of dollars or millions of dollars to express them.
We are entitled to hear all the opinions anyone cares to express. Citizens United was decided in the best traditions of our political history, in which all ideas and opinions are welcome to compete. The sitting president’s attempt to intimidate the Chamber into silence shows exactly why the Constitution was written the way it was.
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