Commentary Magazine


Topic: Citizens United Case

John Paul Stevens’s War on Speech

Four years after the U.S. Supreme Court’s ruling in the Citizens United case Democrats are still trying to turn back the judicial tide that is running against the campaign finance laws they cherish. In that landmark case, the court spiked the government’s efforts to regulate independent expenditures used to promote issues and to express an opinion about candidates. The court’s recent ruling in the McCutcheon case in which it eliminated the cap on aggregate donations has only deepened their frustration. As far as President Obama is concerned these decisions are all about an effort to allow the wealthy to buy American democracy. As it turns out one of the primary boosters of this point of view is the man who wrote the dissent in Citizens United, retired Justice John Paul Stevens.

Stevens is back in the public eye this month primarily to promote a new book he has written in which he proposes six new Constitutional Amendments which would essentially abrogate much of the Bill of Rights by granting the government broad powers to restrict both free speech (First Amendment) and gun rights (Second Amendment). As such, he was recruited to come to Capitol Hill yesterday to lend support for a futile Democratic effort to create an amendment to overturn the impact of Citizens United. As Seth noted earlier, this is a futile exercise as the chances of any such Amendment being passed are less than zero. But it was nonetheless interesting in that it allowed Stevens yet another platform from which he could promote his idea that “money is not speech.”

These comments were widely applauded on the left, but some of his comments as well as others made during the course of his book tour illustrate the slippery slope that Stevens and his Democratic cheerleaders wish to take the country down. Far from proving his case that what the country needs are more restrictions on the ability of citizens to make their voices heard on issues, the upshot of this debate makes it all the more clear that the real focus here is on silencing views they find inconvenient.

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Four years after the U.S. Supreme Court’s ruling in the Citizens United case Democrats are still trying to turn back the judicial tide that is running against the campaign finance laws they cherish. In that landmark case, the court spiked the government’s efforts to regulate independent expenditures used to promote issues and to express an opinion about candidates. The court’s recent ruling in the McCutcheon case in which it eliminated the cap on aggregate donations has only deepened their frustration. As far as President Obama is concerned these decisions are all about an effort to allow the wealthy to buy American democracy. As it turns out one of the primary boosters of this point of view is the man who wrote the dissent in Citizens United, retired Justice John Paul Stevens.

Stevens is back in the public eye this month primarily to promote a new book he has written in which he proposes six new Constitutional Amendments which would essentially abrogate much of the Bill of Rights by granting the government broad powers to restrict both free speech (First Amendment) and gun rights (Second Amendment). As such, he was recruited to come to Capitol Hill yesterday to lend support for a futile Democratic effort to create an amendment to overturn the impact of Citizens United. As Seth noted earlier, this is a futile exercise as the chances of any such Amendment being passed are less than zero. But it was nonetheless interesting in that it allowed Stevens yet another platform from which he could promote his idea that “money is not speech.”

These comments were widely applauded on the left, but some of his comments as well as others made during the course of his book tour illustrate the slippery slope that Stevens and his Democratic cheerleaders wish to take the country down. Far from proving his case that what the country needs are more restrictions on the ability of citizens to make their voices heard on issues, the upshot of this debate makes it all the more clear that the real focus here is on silencing views they find inconvenient.

Stevens backed up his assertion yesterday that money can’t be equated with speech by claiming that political speech is just one of the things that campaign contributions can be. The example of a non-speech expenditure that popped into his mind was the Watergate break-in that was, he pointed out, financed from contributions to President Nixon’s reelection campaign. Citing Watergate in the context of a campaign finance debate is, in one sense, appropriate, because the entire confusing welter of laws produced by the federal government in a quixotic attempt to keep money out of politics started with the fallout from that incident. But outrageous and unusual examples of criminal behavior like Watergate don’t tell us much about the way politics is practiced in the United States.

After all, liberals aren’t worried that Republicans are raising money to finance squads of comically incompetent unemployed ex-spooks to spy on their campaign headquarters, as Nixon did. Their problem with the effort to overturn these laws is that doing so opens up the public square to far more political speech. Stevens and the Democrats think all this speech is creating an unfair playing field in politics and they want to level it off by making it harder for candidates and independent groups to raise the kind of money needed to get their messages out. According to Stevens, Citizens United’s protection of independent expenditures has created vast amounts of “dark money” that cannot be directly traced back to donors, thus raising the possibility that sinister forces will manipulate and purchase the elections of favored candidates. But as we learned with the recent controversy that drove the CEO of Mozilla from his job because of a contribution to California’s Prop 8 campaign, stripping anonymity from donors is no different than abolishing the secret ballot.

The last 40 years have shown that the main effect of campaign finance laws if not their prime motive is to protect incumbents and to silence outlier movements that seek to protest against the political establishment of both major parties. The campaign finance laws also maximize the impact of the mainstream media that can slant the news or editorialize as much as they like in order to promote or trash candidates and causes.

But while money is not needed to be able to express one’s point of view at a Maine town hall meeting—the example of pure democracy repeatedly cited by Senator Angus King who chaired the committee hearing on the law—it is absolutely necessary if one is to mount a challenge to an incumbent member of the House or the Senate or to get one’s ideas about any issue before the public.

Money has and will always be the mother’s milk of politics and no law will ever be able to change that. But the point here is that it is the primary way in our mass media culture in which to reach other Americans. As such, it has become, more than it ever was before, absolutely essential to the expression of political speech. And if there was anything that the Founders of our republic intended to insulate from government interference it was political speech.

As a feature in the New York Times about Stevens’s book pointed out, the former justice isn’t just interested in restricting campaign expenditures but is willing to listen to arguments about banning or at least placing restrictions on the publication of books about politics. That sentiment alone should raise alarms to Americans about the intent of these laws no matter whether they are liberals or conservatives.

When placed in that context, there’s no question that Justice Stevens’s own book as well as the efforts of Democrats to pass amendments trashing the Bill of Rights isn’t so much about playing fair as it is in waging a war on speech.

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Free Speech Can’t Be Redistributed

In the midst of a lengthy press conference rant earlier this week about his refusal to negotiate with Republicans about the government shutdown or the debt ceiling, President Obama took time out to ride another one of his favorite hobby horses: anger at the Supreme Court’s evisceration of restrictive campaign finance laws. The president sounded the usual liberal cries of alarm about the possibility that citizens or groups won’t be stopped from articulating their views in reaction to the Supreme Court’s deliberations on Tuesday. The high court’s 2010 Citizens United decision took down the McCain-Feingold regulations that effectively restricted political speech rights by independent groups and citizens. But the court’s ruling on McCutcheon v. Federal Election Commission could similarly strike down efforts to hamper the ability of individuals to contribute directly to political candidates and party committees.

According to the president and his cheering section at the New York Times editorial page, the likelihood that the conservative majority will rule in favor of McCutcheon’s plea to eliminate specific limits on contributions to candidates and parties is legalized corruption. They believe political speech should be severely limited because free spending will result in the rich or powerful “buying” elections. But at the heart of the campaign finance law impulse is not a defense of democracy but a desire to squelch it. Unrestricted free speech is not inherently Republican or Democratic, conservative or liberal, but what supporters of the current laws want is to make it harder for independent voices to be heard. The campaign finance laws are set up to make it easier on incumbents of all parties and to reinforce the power of establishment media outlets like the Times, which can use its constitutionally-protected bully pulpit to promote ideas and candidates it prefers as much as they like. Just as important, the convoluted web of campaign laws at the heart of the McCutcheon case constitutes a barrier not only to speech but further actual corruption by taking elections out of the hands of the only political players that are truly accountable: candidates and parties.

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In the midst of a lengthy press conference rant earlier this week about his refusal to negotiate with Republicans about the government shutdown or the debt ceiling, President Obama took time out to ride another one of his favorite hobby horses: anger at the Supreme Court’s evisceration of restrictive campaign finance laws. The president sounded the usual liberal cries of alarm about the possibility that citizens or groups won’t be stopped from articulating their views in reaction to the Supreme Court’s deliberations on Tuesday. The high court’s 2010 Citizens United decision took down the McCain-Feingold regulations that effectively restricted political speech rights by independent groups and citizens. But the court’s ruling on McCutcheon v. Federal Election Commission could similarly strike down efforts to hamper the ability of individuals to contribute directly to political candidates and party committees.

According to the president and his cheering section at the New York Times editorial page, the likelihood that the conservative majority will rule in favor of McCutcheon’s plea to eliminate specific limits on contributions to candidates and parties is legalized corruption. They believe political speech should be severely limited because free spending will result in the rich or powerful “buying” elections. But at the heart of the campaign finance law impulse is not a defense of democracy but a desire to squelch it. Unrestricted free speech is not inherently Republican or Democratic, conservative or liberal, but what supporters of the current laws want is to make it harder for independent voices to be heard. The campaign finance laws are set up to make it easier on incumbents of all parties and to reinforce the power of establishment media outlets like the Times, which can use its constitutionally-protected bully pulpit to promote ideas and candidates it prefers as much as they like. Just as important, the convoluted web of campaign laws at the heart of the McCutcheon case constitutes a barrier not only to speech but further actual corruption by taking elections out of the hands of the only political players that are truly accountable: candidates and parties.

As Politico noted yesterday, the main beneficiaries of a victory for McCutcheon would be both the Republican and Democratic National Committees. Since the law specifically restricts the ability of donors to contribute to these national political institutions, money instead flows to unaccountable independents like those protected by Citizens United. There is nothing wrong with independent groups having their say, and the McCain-Feingold effort to stop them was an offense to democracy and, as the court rightly noted, an unconstitutional infringement of free speech. But if those interested in politics are able to give more to the national party committees and the candidates themselves, the result will be that the players in elections can have a greater say in campaigns and therefore be more accountable for what is said on their behalf.

Stopping wealthy individuals from giving more to parties and candidates won’t keep money out of politics. Nothing will do that, especially when you consider that the real corruption in government comes from the ability of politicians to use earmarks and other legislative tricks to dole out goodies to their allies or favored constituencies. The smart way to attack that problem is not by starving non-incumbents who have more problems raising funds than incumbents or making it difficult for others to donate to multiple candidates. Limiting the ability of Congress to play that game with earmarks and other legislative tricks will do more to keep the system honest than 40 years of campaign finance laws have done.

But at the heart of this case is the fundamental drive on the part of the political left to treat political speech as a commodity that can be regulated like interstate commerce. They don’t trust the ability of the people to sort out the varied political messages with which they are bombarded. Instead, they want to dole out political speech in small packages. Liberal Justice Ruth Bader Ginsburg said from the bench on Tuesday that limits on contributions give the “little people” more say. But what she really wants to do is limit everyone’s speech. The Constitution protects the right of all citizens, rich or poor, to speech. The law cannot favor some at the expense of others. Income may be redistributed via the tax laws if the Congress wills it, but free speech cannot be handled in the same manner. That is especially true when one considers that a citizen who spends money on an independent committee has no such restrictions but that one who gives to a candidate or a party is severely limited. Elections are influenced by campaign expenditures just as they are by many factors, but the notion that an office can be bought is given the lie by the failure of many well-funded or wealthy politicians.

The campaign finance laws have created a powerful bureaucracy and a set of laws that force politicians and even private citizens who wish to speak up to hire lawyers if they want to avoid being prosecuted for minute violations of arcane regulations. This does nothing to enhance democracy. The court should follow up on the blow it struck for free speech in Citizens United in McCutcheon. If it does, the only real losers will be those liberals who fear an unrestricted debate of the issues.

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