There may be an issue on which leftist advocates like former labor secretary Robert Reich are more blatantly dishonest, but I’ve yet to find it. Consider Reich’s recent Huffington Post piece – “The First Amendment upside down: Why we must occupy democracy.”
Reich is among the more succinct propagandists on the left, so it can sometimes be difficult to ferret out exactly what he’s advocating. So, folks who simply skim this Huffpo piece can easily get the idea that evil corporations are suffocating democracy under billions of dollars of campaign and lobbying money.
This is happening, Reich claims, because “the Supreme Court says money is speech and corporations are people. The Supreme Court’s Citizens United decision last year ended all limits on political spending. Millions of dollars are being funneled to politicians without a trace.”
That paragraph is so disingenuous that it is difficult to know where to begin. For starters, the Court said money spent to fund political advocacy is protected advocacy, which is not the same thing as Reich’s simplistic “money is speech.”
Second, the Court said corporations are persons deserving of due process and equal protection of the law, which, again, aren’t the same as Reich’s misrepresentation.
I am reminded by Reich’s words here of Mark Twain’s aphorism that “lightning” and “lightning bug” sound quite similar but carry profoundly different meanings.
Third, Reich’s assertion that the Court “ended all limits on political spending” is false on its face. There are in fact 21 limits on individual, party and PAC donations currently enforced by the FEC.
Finally, and most important, leftists like Reich have been apoplectic since the Citizens United decision, which among much else, affirmed the First Amendment rights of individual Americans associating with each other in corporations (and unions, a fact that Reich conveniently forgets to acknowledge).
Leftists like Reich – and President Obama, with his demagogic attack on the high court as the justices sat in the congressional chamber listening to his 2010 state of the union address – endlessly repeat the falsehood that Citizens United created a new corporate right.
In fact, the Supreme Court has held nearly two dozen times since FDR was in the White House that corporations are associated persons who have constitutional rights. In 1978, for example, the Court said in First National Bank of Boston v Bellotti that it found in the context of ballot measures “no support for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation.”
Campaign finance regulations have diluted it somewhat, but the Court’s core holding has remained for decades that corporations are persons with the constitutional protections of due process and equal standing before the law.
Ken Klukowski, who covers the Supreme Court for The Washington Examiner’s commentary pages, suggests three cases in particular are worth reading on this issue, including First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978), Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970), and Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).
To which, I would add the 2003 McConnell v FEC decision, especially the Scalia and Thomas dissents, and, of course, Citizens United in 2010.
The Grosjean decision makes for especially interesting reading because it struck down a Louisiana tax on the state’s five largest newspapers that accepted paid advertising.
Justice George Sutherland – one of the Four Horsemen on the bench who opposed the New Deal – noted in the Court’s decision that English monarchs and parliaments for several centuries prior to the American Revolution had used similar taxes on newspapers and other publications to suppress opinion critical of the government. The First Amendment represented an explicit rejection of such official methods of suppression.
Sutherland said the Louisiana law “is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.”
Just as taxes were often were used in Britain to suppress certain opinions, laws and regulations can be used in America today to restrict speech, which is precisely what leftists like Reich have in mind.
All limits on the amount an individual may give to political candidates, parties or causes represent abridgements on the freedom of speech guaranteed by the First Amendment. (Requiring disclosure of all such expenditures is no limit at all, except upon those who prefer anonymity. This is an issue on which I am as yet conflicted).
Thus, Justice Scalia was right in his 2003 dissent in FEC v McConnell when he reminded us that the Bipartisan Campaign Finance Reform Act of 2002 is “a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. … We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and not-for-profit sort.”
Worse, the acceptance of government-imposed conditions on such political speech makes it just that much easier to rationalize the imposition of official limits in other contexts, such as the news media.
As Justice Thomas argued in his 2003 dissent to McConnell v FEC, “although today’s opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the Court’s reasoning in that setting. The press now operates at the whim of Congress.”
Indeed, it is only a short distance between advocating limits on political speech in order to avoid “the appearance of corruption” – or, as Cass Sustein, Obama’s regulatory czar, argues, to correct or prevent “conspiracy theories” in the general populace – and endorsing such limits on newspaper editorials, opinion columns, or Talk Radio commentaries because they, too, allegedly create such an appearance.
Judging by the actions of President Obama’s appointees at the Federal Communications Commission regarding “net neutrality” and at the Federal Trade Commission for “reinventing journalism,” that distance is probably even shorter than most friends of either the news media or the First Amendment realize.
Mark Tapscott is editorial page editor of The Washington Examiner.
