When the ACLU and the NRA are on the same side of a Supreme Court case, opposing the majority of so-called "good government" groups, you know something odd is afoot. In Citizens United v. Federal Election Commission, to be argued on Sept. 9, two core principles that do not easily lend themselves to compromise run into each other head-on. One is the First Amendment, which has the advantage of constitutional enshrinement along with a huge base of absolutist supporters. The second is the well-reasoned effort to rein in the influence of money in politics, which has the support of editorial boards, civic groups, and those who aspire to a democracy where money does not determine whose political views are heard.
The "Hillary: The Movie case"—as it's commonly known—poses the following question: During the days before an election, can the federal government prohibit Citizens United, a not-for-profit corporation that received minimal corporate donations, from airing advertisements for a movie that, while critical of Hillary Clinton, does not explicitly tell viewers to vote for or against her. At issue is Section 203 of the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold Act). That provision makes it a federal crime for corporations or unions to fund "electioneering communications," defined as broadcast, cable, or satellite communications aired 60 days before a general election or 30 days before a primary election that refer to a clearly identified federal officeholder or candidate.
An important distinction: This case has nothing to do with contributions to a candidate. Strict contribution limits have long been upheld as constitutional. This case is about the ability of corporations and unions to act independently—to air, distribute, circulate "electioneering communications" independent of the candidate.
There is no dispute that barring the advertisement of Hillary: The Movie would constrain free speech. There is also no dispute that limiting the ability of huge entities—corporations and unions—to aggregate dollars and bombard us over the airwaves with their political views would make it easier for less-well-funded citizens to make their political views heard.
As an elected official who often tangled with wealthy corporations, I recognize that there is a superficial appeal in the prospect of being able to silence their political voices. Of course that is precisely why the First Amendment protects them and why I find myself sympathetic to the First Amendment absolutists in this case. What distinguishes what Citizens United did and what Bill O'Reilly on Fox News—Rachel Maddow on MSNBC—does every day? Fox and MSNBC are corporations bombarding the airwaves with political rhetoric, from the right and left, that is as close to "electioneering communications" as anything I can imagine. The McCain-Feingold statute excluded "media companies" from its limitations, a distinction that makes no logical sense. The constitutionality of Citizens United's speech should have nothing to do with what else may or may not go on at the corporation it is part of.
It is not surprising that the ACLU, wearing its First Amendment fundamentalist hat, and the NRA and the Chamber of Commerce, trying to protect corporate power and speech rights, are urging the court to find the provision unconstitutional.
So what is the argument on the other side? Two policy objectives drive campaign finance reform: first, limiting the flow of dollars to, or expenditures on behalf of, any candidate in a way that could be—in actuality or perception—a quid pro quo; and second, limiting the impact that wealthy organizations—primarily corporations and unions—can have by simply overwhelming the forum of public discourse.
The problem of quid pro quos has been effectively dealt with by limiting direct contributions to the candidate (although the levels of these contributions may still be too high, especially at the state level). There is pretty general agreement that these limits do no harm to our First Amendment. The ability to contribute to somebody else is not at the core of our First Amendment rights, as long as you also retain the right to voice your opinion on your own.
And that is precisely where Section 203 comes into play, for it snatches that right away. And that is why, at the end of the day, Section 203 should fall. Efforts to lower the decibel level of all the voices in public debate are flawed. The First Amendment should not be construed to create voices of equal strength: It should merely ensure that all can speak. So, where should folks trying to push meaningful campaign finance reform focus, if not on limiting the speech of unions and corporations? First, lowering the limits on campaign contributions, especially in the state context. Second, eliminating "soft money"—often unlimited contributions to political parties from supporters. Third, building support for public funding of campaigns so that all direct contributions above de minimis levels can be eliminated. These efforts are all directed toward ensuring that a candidate does not become dependent upon sources of funding that would distort honorable governing.
Trying to limit the volume of independent voices will only generate false distinctions and bad logic, and it will also run directly against the core protection of the First Amendment: that we are all permitted—indeed guaranteed—access to the forum of public debate. If the court upholds the current law, then in October 2012, when Michael Moore tries to air a movie titled Palin Uncovered, about the Republican presidential nominee, funded in part by union contributions, he will be told he is violating federal law. What will we think then?