Citizens United has become the new Roe v. Wade, or so it seemed on Tuesday.
President Trump’s Supreme Court nominee, Neil Gorsuch, was peppered in the second day of hearings with questions about that 2010 case which Democrats loathe. Senators in the minority are annoyed that there’s too much freedom to spend money to unseat them, reasoning perhaps that otherwise, they’d still hold a majority.
In assailing Gorsuch’s textualist approach to the Constitution, Sen. Patrick Leahy, D-Vt., asked what would be an originalist understanding of campaign finance regulation, from the time of the Constitution’s ratification.
“There’s nothing in the Federalist Papers that talks about corporate money going into campaigns, is that correct?” he asked.
Gorsuch acknowledged, of course, that the Federalist Papers do not specifically mention corporate campaign spending, adding that their contents were considered by justices on both sides of the issue. He wisely declined to go much further than that, rather than — for example, hooting with derisive laughter.
But we won’t hold back in pointing out the flaw in Leahy’s line of thinking. Based on the Obama administration’s clumsy arguments against what became the Citizens United decision before the Supreme Court, tracts like the Federalist Papers might have been banned from publication altogether. Malcolm Stewart, President Obama’s deputy solicitor general, argued that the federal government had the power to prevent publication of partisan books about candidates for office in the name of campaign finance law.
Although Obama administration officials later withdrew this ridiculous claim, it is an unavoidable conclusion to draw from the arguments that Leahy and others continue to make against the decision. The case was over whether the government could ban a partisan movie that attacked Hillary Clinton. There is no logical difference between the production and release of a partisan movie and the publication of a book that contains a similar message.
The “campaign spending” of the early American republic consisted mostly of partisan newspapers and tracts, such as the Federalist Papers. The Federalist Papers were not specifically directed toward the election of candidates, but they were that era’s equivalent of an issue campaign. They were a series of 85 articles written and circulated as part of a pressure campaign to persuade the 13 states’ legislators to ratify what is now the U.S. Constitution.
It should be noted, as the subject was brought up during Tuesday’s hearings, that the anonymity of those behind this campaign was closely guarded for years afterward. There were no disclosure rules to force James Madison, Alexander Hamilton, and John Jay to make their involvement public.
To be sure, those three had a much loftier goal in mind than simply confirming one person to the Supreme Court. But they were using their day’s equivalent of the very tactics Americans use today to get action from legislators. That includes those who, as Rhode Island Democratic Sen. Sheldon Whitehouse testily complained during his questioning, are running a multi-million dollar ad campaign in key states to pressure Democratic senators to support Gorsuch.
There’s another inconvenient fact here that Leahy, Whitehouse, and Citizens United’s other sworn enemies will no acknowledge candidly in public. It is that when they speak of deluges of “corporate money” they are dishonestly nurturing the idea that Citizens United ushered in a wave of big business spending on elections. No such thing has happened, even though the decision made it possible.
Instead, the major noteworthy innovations since Citizens United have been the SuperPAC (which can raise unlimited money from individuals) and non-profit issue advocacy groups. The fact that the latter are technically considered “corporations,” even though they aren’t what you think of when you hear the word, forms the entire basis for Democrats’ misleading rhetoric.
Whitehouse, Leahy, and others may still believe that the government has an interest in abridging protected First Amendment activity of people who pool their financial resources to elect or reject candidates. In fact, both senators voted, with all other Senate Democrats, to amend the Constitution to weaken the First Amendment in 2014 to that end.
Judge Gorsuch appropriately declined to commit to making any particular ruling on Citizens United or any other specific case or controversy. But we certainly hope he agrees that senators’ personal irritation that others might spend money to deprive them of power is not a sufficient reason to take away cherished constitutional rights.
