Saturday, September 12, 2009

Stop the Slippery Slope of Speech Bans

Under campaign finance law, corporations are prevented from spending their own money to advocate the election or defeat of political candidates. Tomorrow, the U.S. Supreme Court will hear a second round of arguments in Citizens United v. Federal Election Commission to consider righting this First Amendment wrong by overturning two prior rulings.

Supporters of campaign finance laws are predicting a disaster for democracy from the influence of corporate funds. But the truth is that campaign finance "reformers" do not care about corporate speech itself; they want to clamp down on all speech during elections.

Take Fred Wertheimer of Democracy 21, who says that only individuals vote for candidates, so "only individuals should provide the private financing to elect these officeholders, not corporations or other artificial entities."

If true, Wertheimer and his outfit should welcome and more groups like it to the political debate. is a group of individuals who want to pool their money to buy ads opposing candidates who do not support freedom of speech and supporting those who do. The group is not a corporation and will accept no corporate or union funds. Nor will it contribute any money to candidates. In fact, its bylaws require it to be completely independent of candidates and political parties. It is a group of individuals who simply want to spend their own money on their own speech.

Nonetheless, Democracy 21 filed a brief in federal court opposing is challenging federal campaign finance laws that require it to register as a "political committee" and bar it from accepting any more than $5,000 from any donor each year. Television and radio ads are not cheap, so these limits make it impossible for to function. As a result, it sued the FEC, claiming the contribution limits violate its rights to freedom of speech and association.

According to Democracy 21, lifting contribution limits for would allow "wealthy donors" to "contribute hundreds of thousands" of dollars to "sophisticated committees often run by Washington political operatives."

The FEC takes the same position and has even claimed that unincorporated nonprofit association-should be treated exactly like a business corporation.

So much for the claim that only individuals should be allowed to fund political advocacy.

This should not surprise anyone. For over three decades, campaign finance reformers have been advocating draconian restrictions on all spending for speech during elections.

In the early 1970s, they passed restrictions on individual spending for speech during elections. The Supreme Court struck these down in Buckley v. Valeo, but they resurfaced again years later in a case out of Vermont that campaign reformers cheered.

In Buckley, the Supreme Court upheld restrictions on so-called express advocacy-that is, speech calling for the election or defeat of candidates-but not on issue advocacy. When speakers flocked to issue advocacy, reformers claimed that it was all a "sham" and passed McCain-Feingold's electioneering communications ban.

When reformers restricted donations to political parties, donors gave more to independent groups, so reformers are now claiming that independent groups, too, must be restricted.

The fact is, to campaign finance reformers, there is always too much money in elections. They oppose the very idea that individuals should be permitted to spend as much money on their own speech as they want. If it is not corporations spending too much money, then it is independent groups. If it is not them, then it is wealthy people and so on.

There is no end to this argument. If the government can ban ads that say the wrong thing during an election-as it does under McCain-Feingold-then it can ban films like Hillary: The Movie, the film at the heart of the Citizens United case. If it can ban films, then it can ban books, as the government admitted during the first oral argument in the case. If it can ban books, then it can ban newspapers, magazines and Internet commentary.

All of this speech must be funded by someone, and most of it is funded by corporations. Speech costs money, so restricting the money that anyone can raise or spend-whether corporations, wealthy people or anyone else-is censorship, pure and simple.

The only way to avoid this slippery slope is to start treating freedom of speech as an inalienable right, not a privilege that the government can restrict as it sees fit. The Supreme Court can take a critical step in the right direction by overturning bans on corporate speech.

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