Denver Bar Association
September 2012
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In Praise of Citizens United: Someone Has to Pay for All Those Yard Signs

by Doug McQuiston

Editor’s note: This column and "Limiting Money in Politics: Voter Equality Threatened by Campaign Cash" offer a point-counterpoint on the merits of limiting money in politics.

 

I


n his article advocating government limits on spending for political speech, Sen. Ken Gordon contends that Citizens United v. Federal Election Commission “pits five members of the Supreme Court who make an absolutist freedom argument against the desire of the American people to maintain rough equality in each person’s political voice—freedom vs. equality.” Really? The last time I checked, an opinion by five members is law, not the random jottings of some renegade band of black-robed breakaways. But more than that (and as much as I respect Sen. Gordon), his characterization is both a little chilling and miles from the truth.

Sen. Gordon is upset that “five members” of the Supreme Court upheld the plain meaning of the First Amendment. What keeps me up nights is the fact that four members could so easily contemplate gutting it.

The Supreme Court, fortunately for the republic, understood that even the most well-intentioned trip down the spending-limits road leads to a very dark place. An exchange during oral argument illustrated this. According to press accounts of the oral argument1, Justice Samuel Alito asked Deputy Solicitor General Malcolm Stewart (arguing in support of the statutory restrictions at issue):

“What’s your answer to [the] point that there isn't any constitutional difference between the distribution of this movie … [or] providing the same thing in a book? Would the Constitution permit the restriction of all of those, as well?”

Stewart responded essentially that yes, under the provisions at issue, the government could order the book off the shelves. As Bradley Smith mentions in his National Affairs article2, when Stewart said this, there was an “audible gasp” in the courtroom.

There already are too many countries where the government decides which groups get to speak in the political realm, or when they get to speak. Not many Americans would want to live in them. Thank God, the Supreme Court refused to make us.

There also is concern that “political equality,” is threatened by unlimited political spending. History tells us there has never been any such thing as “political equality,” at any time, in our country or in any other. If anything, it is the unfettered political spending guaranteed by Citizens United that is in our “historical DNA.”

The “equality” envisioned by our founders was equality of stature, the equality of all men before the law, and the absence of fixed classes of people. Nowhere do the Declaration of Independence or the Constitution even discuss —much less require—“political equality.”

Our Constitution protects the right of all of us to speak out, to freely associate with other like-minded people, and to raise money for any issue or candidate we see fit. Freely spending all that money (without limits placed on us by government) to enable our political speech enjoys concurrent protection. But the Constitution contains no guarantee that everyone gets issued the same-sized government- approved megaphone.

I wonder whether, in the name of “political equality,” Sen. Gordon would have supported the GOP back in 2010 if they had tried to block the eye-crossingly huge spending in Colorado by the Democrat billionaires club of Rutt Bridges, Tim Gill, Jared Polis, and Pat Stryker. They spent almost 150 times more than all other conservative and GOP sources combined in just the last election cycle, (including almost $600,000 in a single state Senate race).3

Perhaps the “voice” these liberal billionaires bought with all their spending was “louder” than that of my hapless state GOP; perhaps not. But, the Constitution guarantees their right to spend as they see fit. The GOP’s remedy is to raise more money, not to go to court to whine about being outraised and outspent.

The right to unfettered, free spending political speech was already well entrenched in the founding fathers’ everyday lives when they fashioned the First Amendment to guarantee it. They recognized the peculiarly American notion of unfettered free speech, (and the unfettered spending necessary to support it). They knew that political ads, buttons, and rallies cost money. After all, they were politicians. They fund-raised every bit as aggressively (perhaps more so4) as our current office holders. Any notion that the government could limit spending on political speech would have been beyond their imagination.

So, I come not to bury Citizens United, but to praise it. I believe in the First Amendment. I believe in the voters. I even believe in the basic decency of most of the people, from all political ideologies, who choose to run for political office. More to the point, I believe in the American idea envisioned by our founders a lot more than the fickle judgment of any given Congress, or even the considered judgment of the Supreme Court. I make no apology for these beliefs—in this instance, being “absolutist.”

If big spending on politicians and issues turns your stomach, then all I can say is stock up on Tums. We live in a battleground state, and soon the landscape will look like Little Round Top in the middle of Gettysburg. There is no way you can eliminate the spending without muzzling the speech. It is ugly to watch sometimes, but I have yet to see admissible evidence that political interest group spending, even huge amounts of it, is inherently corrupt.5 On the contrary, evidence abounds that the misguided attempts to restrain such spending, such as the McCain–Feingold Act, have had a corrupting effect, by driving the money into Super PACs and making it more difficult to identify, trace, and spotlight.

If big, evil, conservative groups call all of the shots in presidential elections, can someone explain Barack Obama to me? If Big Oil owns Congress, how could they fail to push through the Keystone Oil Pipeline? Why is most offshore drilling in the Gulf still shut down? Why is most of the public land out West still offlimits to drilling? Can they get a refund on their bribe money?

What the actual evidence tells us, if we are willing to see it clearly, is that money, even big money, does not corrupt politics. Corrupt politicians (perhaps abetted by lazy, uninformed voters) corrupt politics.

Interest-group spending, by and large, takes the form of spending on ads for candidates whose ideologies are consistent with theirs, and against those with whom they disagree. That is how politics works. The pot always seems to balance out when it comes time to call. Like I said, it’s ugly, but to paraphrase Winston Churchill, democracy is the worst political system ever devised, except for every other one that has ever existed.

So, if you want to send a few bucks to Sen. Gordon’s Super PAC CleanSlate- Now to help rid the system of all that evil money, (and can handle the sweet irony of donating to a Super PAC to “limit” Super PACs), you won’t have to worry about going to jail over it. The same goes if you’d rather send your check to Karl Rove’s group American Crossroads. The Supreme Court, in Citizens United,6 has protected your right to spend as you see fit.

No one can buy your vote unless you sell it, either by not voting, or worse, voting based on the last negative ad you see on the way into the polls. Your job as a citizen is to keep the noise all that spending generates in perspective, and educate yourself before you vote. If you do your job, as the founders demand of you, the spending becomes mostly irrelevant, and the noise fades into the background.

You’re still in charge if you take charge. D 


1 See, e.g., Smith, “The Myth of Campaign Finance Reform,” bit.ly/6hjjUb.

2 Id.

3 Crummy, “Spending by super PACs in Colorado is the dominion of Democrats,” The Denver Post (March 10, 2012) bit.ly/zaeV2v.

4 See, e.g., Klein, “Our Corrupt Politics: It’s Not All Money,” New York Review of Books (March 22, 2012) bit.ly/yhShW6.

5 For a couple of great references on this subject, see nyti.ms/Kn3fIA and Smith, note 1. 6 And again in American Tradition Partnership v. Bullock, 132 S.Ct. 2490; 183 L.Ed. 2d 448, 80 U.S.L.W. 4577 (S.Ct. 2012).


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