It’s generally taken as a given that the American left is in favor of individual freedoms, but when it comes to the First Amendment that seems hardly any longer to be the case. A few examples should suffice. Let’s start with one: what can only be described as the Left’s irrational obsession with attempting to overturn the United States Supreme Court’s decision in Citizens United, which by now has become a virtual plank in the official Democratic Presidential Platform.
As a brief refresher, Citizens United arose against the background of a national battle against campaign spending on political speech that seems to date back at least to the Watergate scandal of the second Nixon Administration. If only we could take money out of politics, reformers reasoned, we could elect honest politicians who would put the good of the whole above their own and have something approaching the constitutional republic that the Constitution’s Framers envisioned all those years ago in Philadelphia. Right.
This fundamentally misreads the nature of politics, of people, of government, and of the Constitution itself. Unless, like Bernie Sanders, you believe that “rich people” (defined as anyone who makes more money than you) are the root of all evil, then you should recognize that it is not money that corrupts: as Lord Acton recognized, it’s power.
And the reason that government in general and the national government in particular invite so much corruption are that they have assumed so much power over American’s lives, livelihoods, educations, and – indeed – their very health. No aspect of American life is too minute for the federal government to attempt to regulate, from who must pay for your birth control if you don’t want children to what kind of car seat your children have to ride in if the birth control doesn’t work.
But back to Citizens United. The case arose from four private citizens who formed a not-for-profit corporation they called “Citizens United” to produce a film arguing against voting for Hillary Clinton for President.
Never mind that the CBS television network has for three seasons now run a continuing series called “Madame Secretary” about a brave and capable blond-haired Secretary of State whose passing resemblance to the former Secretary of State now running for the Democratic party’s presidential nomination is doubtless wholly coincidental.
Never mind also that the president of CBS News is David Rhodes, whose brother Benjamin is deputy national security adviser for strategic communication for U.S. President Barack Obama, who would love to see his former Secretary of State elected as his successor. The idea of independent film-makers arguing directly against the Secretary’s election as President was more than the power structure could bear. Only Michael Moore gets to do that kind of stuff.
So the government sued to block the film as violating campaign spending laws. And – as is all too typical for government – the government over-reached. It actually had the audacity to argue that, under campaign finance laws, it could even ban the sale of a book within a specified number of days of a Presidential election that said “don’t vote for candidate X.”
This was too much for the Supreme Court to bear, which accordingly ruled that corporations, labor unions, and political action committees could spend as much as they wanted, provided they didn’t coordinate with the candidates they support. The effect of such spending, the Court reasoned, was neither pernicious nor profound.
But obviously the Supreme Court must have been wrong, because look how $118 million or so was able to buy the Republican nomination for Jeb! Bush. And look at how poorly Donald Trump, whose major coverage comes from the media at no expense to him or any super-PAC, has done at the polls.
Oh. Wait.
Reasoning not being the Left’s strong suit, the push to overturn Citizens United remains strong. Whether a post-Scalia Supreme Court will indeed reconsider and overturn the opinion remains to be seen.
But if it does, don’t look on it as a victory for free speech.
David Applegate is a Chicago-based trial lawyer and partner at the law firm of Williams Montgomery & John Ltd.
