George F. Will
WASHINGTON: Montana uses an interesting argument to justify defiance of a Supreme Court decision: Because the state is particularly prone to political corruption, it should be trusted to constrict First Amendment protections of political speech.
At issue is the court’s 2010 Citizens United decision, which held, unremarkably, that Americans do not forfeit their First Amendment rights when they come together in corporate entities or labor unions to speak collectively. What do liberals consider the constitutional basis for saying otherwise?
Three Montana corporations sued to bring the state into conformity with Citizens United by overturning a 100-year-old state law, passed when copper and other corporations supposedly held sway, banning all corporate political spending. The state’s Supreme Court refused to do this, citing Montana’s supposedly unique susceptibility to corporate domination — an idea amusingly discordant with the three corporations’ failure even to persuade the state court to acknowledge the supremacy of the U.S. Supreme Court.
Reasons for the Supreme Court to reconsider Citizens United are nonexistent. The ruling’s primary effect has been to give unions and incorporated nonprofit advocacy groups freedom to spend what they choose on political advocacy as long as they do not coordinate with candidates or campaigns. Campaign “reformers,” who advocate speech rationing, apparently regard evidence irrelevant to argument, probably because there is no evidence for their assertion that 2012 has been dominated by corporate money unleashed by Citizens United. An amicus brief submitted to the Supreme Court by Sen. Mitch McConnell, Congress’ staunchest defender of the First Amendment, notes:
Through March 31, the eight leading super PACs supporting Republican presidential candidates received contributions totaling $96,410,614. Of this, $83,220,167 (86.32 percent) came from individuals, only $13,190,447 (13.68 percent) from corporations, and only 0.81 percent from public companies. McConnell says “not a single one of the Fortune 100 companies has contributed a cent” to any of the eight super PACS. These facts refute such prophesied nightmares as The Washington Post’s fear that corporate money “may now overwhelm” individuals’ contributions.
Even an article in the ABA Journal falsely says: “These multimillion-dollar PACs were made possible by” Citizens United. And Justices Stephen Breyer and Ruth Bader Ginsburg, who dissented in that decision, say the Montana case gives the court an occasion to reconsider it “in light of the huge sums currently deployed to buy candidates’ allegiance.”
Disregard the unsupported smear that candidates are bought, but note this: If these justices believe candidates are corrupted by independent expenditures, presumably they believe that regulating or outlawing them can be justified as combating corruption or the “appearance” thereof. Hence their objection is not to Citizens United but to constitutional protection of advocacy-funding practices that are as old as the Republic.
Before Citizens United removed restrictions on independent expenditures by for-profit corporations, a majority of states already had no such restrictions. Neither did they have records of distinctively bad behavior.
Indisputably, this year’s super PACs have, as McConnell’s brief says, “led to more political debate over a lengthier period of time during which more voters had the opportunity to participate in the choice of a presidential candidate.” As McConnell notes, the Montana court’s ruling is “disdainful” and disobedient regarding the Citizens United decision, but this lawlessness is not what bothers many people who think of themselves as defenders of good government. Instead, much of the media and most liberals urge Americans to be scandalized about “too much money” in politics. That three-word trope means (because most political money is spent on the dissemination of political advocacy) that there is more political speech by others than is considered proper by much of the media, which are unrestricted advocates.
This media and liberal anxiety was not conspicuous in 2004, when George Soros spent $24 million supporting Democratic candidates. Back then, the liberal/media complex embraced this Supreme Court principle enunciated in 1976: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
Last year, Procter & Gamble, America’s largest advertiser, spent $2,949,100,000 — more than will be spent by the Obama and Romney campaigns and super PACs supporting them. The fact that more is spent to influence Americans’ choice of their detergent than of their president is as interesting as this:
The collapse of liberals’ confidence in their ability to persuade is apparent in their concentration on rigging the rules of political persuasion. Their problem is that the First Amendment is the rule.
Will is a Washington Post columnist. He can be emailed at email@example.com.