Citizens United v. FEC and Christian Liberty

It was and is a game changer. Citizens United v. FEC has changed, or should we rather say, re-established the ground rules. A corporation, whether it is non-profit or a for-profit, can speak against issues and the candidates who hold those positions.

(a) Although the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech,” §441b’s 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 created by a corporation can still speak, for a PAC is aseparate 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. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.

What this doesn’t say, and I wish it would have more directly, is the 501(c)(3) IRS directives on certain non-profits. That was neither the purpose or any implication of this suit. What it does, from my novice perspective, is provide a broader understanding of “press” in the First Amendment. Is “press” a simple noun that belongs only to certain corporate entities, or is “press” a functional term that deals with the liberty of publication of opinion?

Despite the rantings of the Left, there was still a great deal of corporate monies being poured into campaign talk. Take MSNBC, for instance. MS stands for Microsoft. This is their corporate partnership with NBC. The network website is even hosted by Microsoft at http://www.msnbc.msn.com/. With the network’s liberal bias patently obvious in the rantings of Maddow, Schultz and Olbermann, it is difficult to see this as anything but corporate funds being poured into advocacy. It makes a person wonder if McCain-Feingold were any more than a limit on specific speech.

But if the First Amendment is not enough to keep Congress at bay, should we be so naive as to think this ruling can do any more? This ruling does, though, leave open the door to more religious speech that should not otherwise be restricted. Keith Fournier’s view is this:

The Supreme Court used this case to rule on the constitutionality of restrictions imposed on political speech and expenditures by corporations, associations and organizations through campaign-finance laws. To the shock of some observers, the US Supreme Court reversed itself and overruled the central provisions of “campaign finance reform”. Within minutes of the decision the reactions and the posturing began. The Obama administration called for legislative action to undo the impact of the ruling. However, there is little chance that such an effort will succeed. (emphasis mine)

The well written majority opinion traces the confused labyrinth of cases and statutes which act to restrict corporate/organizational speech and expenditures related to it. Many observers felt the Court would not overrule itself but use a narrow ground to somehow remedially approach the issue. The majority opinion states the standard for such a rare action as overruling past holdings, “Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error….”

The fact that the Court overruled its prior decisions is very significant to anyone who has set their sites on overturning Roe v Wade and engaging in the kind of massive political action such a result will require. We must persuade the Court to reverse RoeDoe. This will take massive organizational development as well as effective and sustained political and legal activism. It will also take a lot of money. In addition, we must encourage candidates to run for office who recognize the fundamental human right to life, oppose those who do not and pressure those who waver.

While some critics of the decision point to the problem of corporations influencing elections, it is very easy to miss, whether intentionally or not, that quashing free speech always amounts to nothing less than quashing free speech. Corporations are owned by people, just as unions are owned by people, and churches (and all other free associations) are composed of people in free association. This ruling is historically democratic.

This decision also exposes how the simple term “freedom” is defined. For the conservative who represents the classic liberal understanding of the term, freedom is the ability of the individual to express personal will. This will finds one expression of its liberty in the freedom to pursue economic prosperity.

In contrast to this, today’s Leftist sees freedom through the eyes of economic necessity. That is, if there is need then freedom is proportionately diminished. Thus the richer one is, the freer one is. This economic stratification is deemed an injustice, and the result is class warfare.

We now have a better opportunity to confront the Marxist view of liberty as deficient. When doors of opportunity open then we do well to follow the opportunity for further ministry. This ministry can include a confrontation of the world view that drives the Left, as plainly expressed by President Obama.