“It is my belief that there are ‘absolutes’ in the Bill of Rights and they were put there on purpose by men who knew what words meant and meant their prohibitions to be absolutes . . . [The first Amendment] provides, in simple words, that ‘Congress make no law . . . abridging the freedom of speech or the press.’ I read ‘no law abridging’ to mean ‘no law abridging.’”
— the late Supreme Court Justice Hugo L. Black
On first reading the Supreme Court’s Citizens United decision of Jan. 21, which overruled provisions of the McCain-Feingold campaign finance reform act that criminalized union and corporate public advocacy advertisements urging the election or defeat of a federal candidate within 30 to 60 days of the election, I thought of my favorite quote — the one above — from my favorite justice of all, Hugo Black.
Writing for the 5-4 majority in Citizens United, Justice Anthony M. Kennedy’s words were consistent with Black’s famous strict-construction, "absolutist" First Amendment philosophy. “Under our laws and our traditions, it seems stranger than fiction for our government to make political speech a crime,” Kennedy wrote. There is “no basis for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers.”
Moreover, as the writer of a column called “Purple Nation,” if ever there were a “purple,” or "blue-red," group of supporters of the majority’s decision — liberal groups such as the ACLU and the AFL-CIO and conservative groups such as the NRA and the U.S. Chamber of Commerce — this is it.
Yet the Supreme Court’s decision was strongly opposed by my four favorite liberal Supreme Court justices, with a passionate 90-page dissent written by the greatest one of all, John Paul Stevens. The decision was also criticized by most liberal Democrats, of which I am one, and by President Barack Obama. Most conservatives and Republicans with whom I disagree cheered the decision, privately gloating that it will result in huge amounts of corporate contributions unleashed in their direction.
So I am conflicted. I believe in the First Amendment as Justice Black did — no ifs, ands or buts. But I am fearful of the power of big corporate money flooding into the federal election process in the form of advocacy ads, which undoubtedly will not be matched by union-paid ads, which will now also be legal.
However, my hunch is that the Citizens United decision will have far fewer dire effects than liberal Democrats have publicly predicted, and far fewer favorable effects than conservative Republicans are privately saying.
First, corporations that pay for partisan public ads must take into account the possible risk of consumer boycotts and shareholder backlash. This smacks of McCarthyism — and has happened in the last year, on both the right and left, with regard to positions taken by corporate executives. Similarly, there are union members who might rebel if their officers are deciding to pay for advocacy ads that take positions with which some members disagree.
This self-restraint by corporations and unions will occur especially if the regulatory or legislative response is to impose greater transparency for all donations — as Justice Kennedy himself suggested in his decision, perhaps instantaneously on the Internet.
Second, corporations or unions that contribute to certain nonprofit corporations or trade associations in the belief this will provide them cover may well be disappointed. The current rules that arguably allow anonymity for donors to certain nonprofits and trade associations could be changed by congressional legislation, replaced by strict transparency for any money targeted for political advocacy ads.
To those who argue violation of privacy rights, the constitutional answer should be: You have waived such rights when you choose to donate to help elect or defeat a federal candidate.
If the public is really concerned about reducing the influence of money in politics, there is one way to do so: some form of public financing of all federal elections. That can be accomplished by the simple idea of requiring a $5 or $10 check-off box to contribute to a public trust fund, which would fund federal elections rather than individual contributions. However, this is hardly a panacea.
It won’t end the influence of independent public advocacy now protected under the Citizens United decision. And experience to date is that participation in the current optional tax credit dollar-check-box for presidential campaigns, which costs taxpayers nothing, has been on the decline.
But with bipartisan support and better marketing, perhaps a $5 or $10 option could be sold. If people are that concerned about the excessive impact of money in American politics — and who couldn’t be? — isn’t it worth five or 10 bucks per person to reduce the impact of money in politics?
I certainly would check the box. Wouldn't you?
Lanny J. Davis, a Washington attorney, served as President Clinton’s special counsel from 1996 to 1998 and as a member of President Bush’s 5-Member Privacy and Civil Liberties Oversight Board.
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