AMAC Exclusive – By Louis J. Senn
Last week, the major news coming out of the Supreme Court was the announcement that, after months of very public lobbying from progressive groups and even elected Democrats, Associate Justice Stephen Breyer would retire at the end of the current Court term. That news came on the heels of the Court saying that it would hear what promises to be the most significant challenge to race-based admissions standards, otherwise known as affirmative action, since 2016. But even as speculation swirled about who Biden’s nominee to replace Breyer might be, and how the Court’s new 6-3 conservative majority might handle the affirmative action question, the Court quietly marked the anniversary of another one of its more consequential decisions of Breyer’s tenure – Citizens United v. FEC. As the country continues to engage in a national debate over the censorship of political speech and other First Amendment concerns, it’s worth taking a look back at this monumental decision, how it has helped protect political speech since being decided in 2010, and how it might continue to do so in the future.
Citizens United Background- Hillary: The Movie
Citizens United is an advocacy group that had already had a few encounters with the Federal Elections Commission before their famous lawsuit. Notably, they launched a complaint against Michael Moore’s Fahrenheit 9/11, a film released in 2004 ahead of the presidential election criticizing President Bush for his handling of the September 11, 2001, terrorist attacks. Citizens United argued that the film violated the McCain-Feingold Act, which prohibited outside groups from supporting or attacking specific candidates by name within 30 days of a primary or caucus or 60 days of a general election. However, the FEC sided with Moore, saying that his movie was not a violation of the ban on campaign advocacy because the film represented “bona fide commercial activity” and not “contributions” or “expenditures” for or against a candidate.
In response, Citizens United released a film of their own critical of Democratic nominee John Kerry. However, the FEC argued that Citizens United was not a “bona fide filmmaker,” and that their anti-Kerry movie would violate the McCain-Feingold Act.
Four years later, ahead of the 2008 presidential election (and after efforts to establish themselves as bona fide filmmakers through the production of several documentaries), Citizens United released, and tried to advertise, Hillary: The Movie to show why then-Senator Clinton was unfit to be president. This time, they filed a complaint in the U.S. District Court for the District of Columbia arguing that the provision of McCain-Feingold in question was unconstitutional.
Can the Government Ban Books?
It cannot be understated how tyrannical the federal law was before Citizens United. The law granted unprecedented power to the government to control speech it deemed politically persuasive before an election. In the wrong hands, such power could allow the government to suppress speech with which it did not agree. Democrats continue to claim that this assertion was conspiratorial and had no grounding in reality. However, consider this stunning exchange during the first set of oral arguments in the Citizens United case:
Justice Alito: “You think that if – if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”
Deputy Solicitor General: “If the book contained the functional equivalent of express advocacy.”
Chief Justice Roberts: “If it’s a 500-page book, and at the end it says, and so vote for x, the government could ban that?”
Deputy Solicitor General: “We could prohibit the publication of the book.”
In the second set of oral arguments, then-Solicitor General Elena Kagan tried to walk back the comments made above, but even she could not un-ring that bell. The court found the original admission so stunning that it addressed the horrific implications in its opinion, holding that this “brooding governmental power” does not instill “confidence and stability” in the free speech that the First Amendment is intended to protect.
Free speech is for everyone, not just for woke corporations
The Left frequently claims today that Citizens United allows too much “corporate influence” in our elections. The reality is that the left doesn’t like any influence that disagrees with its approved candidates or ideas.
Notice that it’s okay when Delta or Coca-Cola weigh in on issues like the Georgia election integrity law that Democrats falsely claimed amounted to voter suppression. Or, even more egregiously, consider that it was acceptable to the left for Twitter (a for-profit corporation) effectively to censor a well-sourced article regarding the Biden family’s corruption, even going so far as to suspend the Twitter account of the New York Post, America’s oldest daily newspaper, just weeks before the 2020 election. When a corporation engages in supposed “conservative electioneering,” it’s the end of democracy as we know it, according to Democrats, but we’re all supposed to applaud when liberal activist corporations do the same thing.
In Citizens United, the Supreme Court wasn’t afraid to do the right thing and remind the government that the First Amendment belongs to everyone, especially when it’s political speech.
Democrats’ doomsday predictions haven’t come true
When the Supreme Court first decided Citizens United, Democrats declared this to be the end of election integrity (sound familiar?), and indeed the end of democracy as we knew it. A week after the decision, President Obama erroneously stated in his State of the Union that “the Supreme Court reversed a century of law to open the floodgates for special interests…to spend without limit in our elections.” However, despite this hyperbolic language by Democrats insisting that corporate influence would destroy America, the reality has been far from the predictions. If anything, Citizens United may have diminished the power of money in politics, because all sides are now awash in so much money, and Americans so inundated with advertising and political messaging, that money alone cannot make the difference.
Take, for example, the 2016 race. In the Republican primaries that year, Jeb Bush, Ted Cruz, and Marco Rubio all raised far more than the eventual winner, Donald Trump. In the 2016 general election, Hillary Clinton drastically outraised and outspent Donald Trump, and we know where that got Clinton. Stacey Abrams outraised the Georgia Governor Brian Kemp in 2018. Most recently in Virginia, Lieutenant Governor Winsome Sears and Attorney General Jason Miyares were both outraised by their (again, losing) opponents. And then, in the most show-stopping result of the 2021 elections, the powerful and very well-financed New Jersey Senate President lost to a truck driver who had raised almost no funds at all.
Money still matters a great deal in elections, but not, perhaps, in the way it once did. Individual, small-dollar contributions have become a far better indicator of the success of a candidate than simply raw funds raised or the activities of outside organizations. Corporations have not had the democracy-ending influence that Democrats claimed they would following the Citizens United decision. If anything, the democratization of information through the internet and the rise of small-dollar platforms like Win Red for Republicans and Act Blue for Democrats have made the influence of corporations even less pervasive.
Political Speech must be protected to maintain a free society
In a free society, people, groups, and organizations of all kinds must be able to speak their minds. The Left has deluded its followers into believing that Citizens United was a “sell out” of American elections to large corporations. However, as noted by the Supreme Court, more than “75% of corporations whose income is taxed under federal law…have less than $1 million in receipts per year.” Most “corporations” are small to mid-sized businesses owned by our fellow neighbors, church members, family, and friends. And most companies don’t want to wade into politics because, to borrow a phrase from Michael Jordan, “[the other side] buys sneakers too.”
The free speech fight is not over. Although the Supreme Court rescued the First Amendment in Citizens United, the left’s crusade against freedom of speech has only increased in the years since.
So, as we look to future battles over censorship and free speech in America, let us draw inspiration from a Supreme Court which, in Citizens United, had the foresight to recognize that a government which says out loud that it can ban books is not speaking theoretically, and that those charged with protecting the liberties enshrined in our Constitution have a responsibility to do so. While the Citizens United case might have been about “corporations,” the next challenge to free speech may very well be about the individual’s right to free speech. That’s why freedom-loving Americans must always be on guard – we never know from direction the danger will come.
Louis J. Senn is a lawyer living in Louisville, Kentucky. He previously served in the Trump administration.