The Renewed War Against Freedom of Speech

Guest Commentary by Edward Cline:

No sooner had the Supreme Court upheld the right of corporations to exercise their freedom of speech, than the ruling was attacked, first by newspapers, pundits, and finally by President Barack Obama in his State of the Union address.

Various newspapers and blogsites, including the White House, carry this version of what Obama said:

With all due deference to separation of powers, last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’d urge Democrats and Republicans to pass a bill that corrects some of these problems.

But, the Baltimore Sun transcript of his speech contains oddly different wording:

It's time to require lobbyists to disclose each contact they make on behalf of a client with my administration or Congress. And it's time to put strict limits on the contributions that lobbyists give to candidates for federal office. Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. Well, I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong.

Having watched the speech, and heard Obama speak the first version, it is curious that there are different versions of it floating around the news media. However, be that as it may….

The first part of his statement is confusing. Did he mean that the Supreme Court (finally) showed deference to (or recognition of) the separation of powers by drawing a firm line between government power and the inviolability of freedom of speech? That would seem to be a compliment to the Court, but Obama’s hostility for freedom of speech is too well known. Or was he referring to the necessary restraints placed by the Constitution on executive powers? Hardly. They didn’t stop Woodrow Wilson and Franklin D. Roosevelt from demonizing and persecuting anyone who spoke against the wars they oversaw. His statement may be taken as a measure of power-envy.

The “due deference” was his own, a venal expression of a contempt for the separation of powers. His practiced dissimulation worked to get him elected, and then to lord it over Congress to have destructive legislation passed. But his rhetoric and style have lost their “magic.” His election was bankrolled by “powerful interests,” and he knows too well that most Democratic members of Congress do not represent the American people and that, for all their blather about wanting to help Americans, do not have their best interests in mind. He knows, as most of them do, that most Americans oppose his and Congress’s mutual totalitarian agenda.

While a badly constructed sentence, the “due deference” statement was an invitation to his allies in Congress to begin a push for some kind of retaliatory legislation that would castrate the ruling and render it impotent.

And as important as the Court ruling was, it did not altogether repudiate the McCain-Feingold Bipartisan Campaign Reform Act of 2002. As one university blogsite remarked about Obama‘s swipe at the Court and how wrong he was about the ruling:

The impropriety of such a remark shocked scholars and journalists on the left and the right. Not since FDR’s Supreme Court insults has a President challenged judicial authority so publicly. Obama crossed the line in regards to separation of powers, but the most disappointing part of this judicial challenge is that Obama’s charge was inaccurate. First of all, Citizen’s United did not touch or change the early 20th century campaign law that Citizen’s United opponents continuously cite as the basis for their claim that the decision “reversed a century of law”. Mitch McConnell took to the Senate floor and rebutted Obama’s claim that the Supreme Court decision addressed foreign corporations impacting American elections. Federal law and Federal Elections Commission rules regarding foreign financing were left untouched by the Citizen’s United decision.

Obama remarked that the ruling “reversed a century of law.“ He was referring to the incremental reduction of the First Amendment, beginning with the Tillman Act of 1907.

Another chapter was begun in 1907 when Congress passed the Tillman Act, prohibiting national banks and corporations from making contributions in federal elections. The Corrupt Practices Act, first enacted in 1910 and replaced by another law in 1925, extended federal regulation of campaign contributions and expenditures in federal elections and other acts have similarly provided other regulations.

Subsequent regulations, like a steel ball rolling inexorably down a spiral chute, from the unchecked impetus of statism, had to end up regulating when, where, how, and by whom speech could exercised before and during federal elections.

As Justice Anthony Kennedy wrote in the majority opinion:

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the anti-distortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.

Although the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech,” prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC [political action committee] created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence.

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

Progressivism leaves no right untouched, no absolute principle intact. As politically correct language and “bias-free“ vernacular atomize words and concepts so that they do not “offend” anyone, the ideology of progressivism disintegrates rights and principles into particulars and special exceptions so that no one may claim them as fundamental or universal. The exercise of those rights and the application of those principles must first be vetted and approved by panels of “experts,“ such as the Federal Election Commission.

Justice Clarence Thomas, who was with the majority on the Citizens United ruling, noted the uproar liberals and leftists were raising about the ruling, claiming it will give corporations the power to influence, if not control, elections.

“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”

A point obviously still lost on The New York Times and The Washington Post. Thomas also noted that the part of the law struck down by the ruling exempted “news reports, commentaries and editorials.“ Newspapers and other publications were the beneficiaries of McCain-Feingold because of some groundless aura or mystique surrounding the press seen by its authors. The Times article was headlined, “Justice Defends Ruling on Finance.” But, the ruling was not about “finance.” It was about the First Amendment and freedom of speech. Still, the Times reported Thomas’s remarks without bias:

Justice Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process. “If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”

“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.

Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”

This is thinking in principles.

Not thinking in principles are those who wish to overrule the Supreme Court’s finding. Rallying around Obama’s tattered flag are, among others, Senators John Kerry of Massachusetts and Chuck Schumer of New York, and Representative Chris Van Hollen of Maryland. Or perhaps it isn’t even a matter of their choosing to not think in principles, but one of their being, well, slow, or malicious, or both. Call it the Congressional Bronx cheer in answer to a grave Court ruling.

Sen. John Kerry, D-Mass., told the committee [the Senate Rules Committee, chaired by Schumer] "we may also need to think bigger….I think we need a constitutional amendment to make it clear once and for all that corporations do not have the same free speech rights as individuals," Kerry said.

House Judiciary Committee Chairman John Conyers, D-Mich., and Rep. Donna Edwards, D-Md., said Tuesday they had introduced a constitutional amendment permitting Congress and the states to regulate the expenditure of funds by corporations engaging in political speech.

Schumer himself said:

"If this ruling is left unchallenged, if Congress fails to act, our country will be faced with big, moneyed interests spending, or threatening to spend, millions on ads against those who dare to stand up to them," Senate Rules Committee Chairman Chuck Schumer, D-N.Y., said at a hearing of his panel. Schumer said he and Rep. Chris Van Hollen, D-Md., will propose legislation soon. Two House committees also plan hearings Wednesday on the ramifications of the 5-4 Supreme Court decision.

But…no one is supposed to stand up to an omnivorous Congress? The federal government is not a “big, moneyed interest” that spends, spends, spends on ads and propaganda everywhere one looks? The Tea Parties and town hall meetings of 2009 were not evidence that Americans retained their freedom of speech, and let an unresponsive Congress and the White House know in no uncertain terms that they are not interested in becoming cattle herded by a political elite to the greener pastures of serfdom, or that they are not buffalo to be run off a cliff wholesale, as Western Indians did, so that politicians and special interests (foreign or domestic) can more easily select which of their carcasses can be carved up for food and clothing?

Ideas for Constitutional amendments and nullifying, fiat legislation are gushing forth like rusty water from a broken spigot. The valves and washers of deference, decorum, and caution are shot and the speech regulators can’t help themselves.

In the House, Representative Donna Edwards, Democrat of Maryland, and Representative John Conyers Jr., Democrat of Michigan, introduced legislation calling for such an amendment yesterday. Thomas Udall, Democrat of New Mexico, said he plans to file a similar bill in the Senate.

Representative Niki Tsongas, Democrat of Lowell, said yesterday that she would introduce legislation restricting corporations from using government money, such as bailout funds, for political purposes. Tsongas said she would seek to attach the provision to a more sweeping bill being prepared by Representative Chris Van Hollen, Democrat of Maryland. Senator Charles Schumer, Democrat of New York, is working on similar legislation in the Senate.

The Edwards-Conyers amendment reads:

“The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity,” the amendment says. “Nothing contained in this Article shall be construed to abridge the freedom of the press.’’

Translation: We don’t care what the Court says about individual rights or freedom of speech. We want to gag corporations. You should know by now that we don’t give a fig about “associations of individuals” speaking through organizations. We want to control who says what, when, and how. Of course, please don’t take this as an abridgement of your freedom of speech.

Or: A can be A and non-A at the same time.

A constitutional amendment is not likely to see the light of day. It would require the support of two-thirds of the House and Senate and three-fourths of the states to ratify it. This could take years, and the Democrats’ days seem to be numbered in both chambers in the months leading up to the mid-term elections. But there are no constraints on Congress’s appetite for passing fiat law and the vindictive manner in which they propose it..

Other ideas are in the offing.

Others, such as Sens. Dick Durbin (D-Ill.), are making an appeal for a broader legislative fix, such as passing a public financing program for federal candidates similar to the one in place for presidential elections.

The Campaign Legal Center, a watchdog organization and defender of the McCain-Feingold law, also would like the Federal Communications Commission to ensure access to airwaves by candidates. Broadcasters now must sell time to candidates at the lowest unit rate, but broadcasters can pre-empt those ads if a higher bidder is willing to pay more for the time.

“Airtime sold at the lowest unit rate is generally preemptible, thus forcing candidates to buy the more expensive, non-preemptible time to ensure they reach the targeted demographic. A new statute should ensure that once again the lowest unit rates for candidates are meaningful,” the group wrote Schumer.

On one hand, Durbin is seeking to force taxpayers to further perpetuate both political parties by underwriting a multitude of races of federal office. On the other, broadcasters are to be further denied their property rights by being forced to ensure cheap airtime for candidates to address the public.

Not to be out-done, MoveOn (aka George Soros) has come up with its own unique proposal for a constitutional amendment:

We, the People of the United States of America, reject the U.S. Supreme Court's ruling in Citizens United, and move to amend our Constitution to:

Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.

Guarantee the right to vote and to participate, and to have our votes and participation count.

Protect local communities, their economies, and democracies against illegitimate "preemption" actions by global, national, and state governments.

Justice Kennedy’s reasoning and proofs rolled off of Move.On’s backs like water off a duck‘s back. Corporations are not “human beings” or even “persons,” just menacing entities run by robots. No, money isn’t speech, especially if you can’t afford to buy time on someone else’s soapbox, which should be public property and free anyway, right?. And any future rational decision by the Court or even by the government must be deemed “illegitimate.”

“In a democracy, the people rule,” says Move.On, and corporations should be prohibited from “buying elections.” Corporations, however, staffed by people, do not “buy elections.” People do, when they vote. And they certainly bought a lemon when they “bought” Barack Obama, whose campaign was financed and run by well-oiled non-profit corporations.

And, people “rule” in a democracy only until a tyrant takes over to bring “order“ out of the chaos of mob rule, also known as democracy. MoveOn is deaf to the lessons and advice of the Founders, who were experts on democracy. That is why they created a republic.

A more verbose instance of such sophistry proposing an amendment is offered by an organization called “CallaConvention.org.” Here are its first two provisions:

Congress shall have the power and obligation to protect its own independence, and the independence of the Executive, by assuring, through citizen vouchers or public funding, that the financing of federal elections does not produce any actual or reasonably perceived appearance of dependence, except upon the People.

The Freedom of Speech and of the Press shall not be abridged by this Amendment, save that the First Amendment to this Constitution shall not be construed to limit the power of the People to restrict any significant and disproportionate non-party financial influence during the last 60 days before an election, where such influence would reasonably draw into doubt the integrity or independence of any elected official.

“Independence” from what? From the electorate? From the Constitution? From reason and the assertion of individual rights? Going by Congress’s record over the last century, Congress is not so much “independent” as it is removed and exempt from the constraints that define its powers in the Constitution. This draft amendment accurately describes the current state of Congress and the picayune, contextless interpretations of the First Amendment.

Nothing could serve as better incontrovertible evidence of an absence of “due deference” to the principle of freedom of speech than the hostility to it demonstrated by politicians and their ilk at large in response to the Supreme Court’s ruling.

Americans’ only defense against such attacks is to emulate Justice Alito, but instead of mouthing the words silently, they should stand up and shout, “Not true!”

Crossposted at The Dougout