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The Government’s War on Speech: Citizens United at Five


The most reviled Supreme Court case in America history is undoubtedly Dred Scott v. Sanford. The ruling, which essentially denied U.S. citizenship to an entire group of Americans, fractured the nation, and presaged the bloodiest episode in American history. In 2013, Massachusetts Senate candidate Ed Markey analogized Dred Scott to Citizens United v. FEC—a case involving the rights of people and groups to criticize government officials. Although the comparison may seem outlandish, he was hardly alone in hyperbolic denunciation. An environmental group, for example, asserted the case’s ramifications could endanger the continued existence of fish in the ocean.

Citizens United turns five today. Although the republic has persevered and marine life remains abundant, the case has deleteriously affected American democracy. It unleashed systematic government hostility toward the free-speech rights of its citizens, including to criticize government, pool resources to advocate for a common political cause, and to have some of that advocacy done anonymously.

Initially catalyzed with presidential rhetoric, attacks permeated throughout the federal government, from Washington’s most powerful institutions to nondescript bureaucratic backwaters. The effort—concerted if not centrally coordinated—has been at times presumptively unconstitutional and blatantly illegal. Most disturbingly, even after being “caught,” official reaction has been mendacity, hypocrisy, and proposals for even more control of citizen speech.

At its core, Citizens United was about a movie—“Hillary the Movie.” In 2008, Citizens United, a 501(c)(4) nonprofit corporation, hoped its unflattering documentary would sway public opinion against presidential candidate Hillary Clinton. 501(c)4’s, classified as ‘social welfare organizations,’ have a long history of political advocacy and include groups like the National Rifle Association and AARP. But because of time windows and other archaic campaign finance law, airing “Hillary the Movie” before the 2008 election would have subjected the corporation to criminal penalties. Citizens United sued on First Amendment grounds.

The Empire Strikes Back

Although the Supreme Court interpreted prolix regulations, the central question was basic: can government impede groups from directly advocating for or against political figures? By a one-vote majority, the Court said no. “[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence.” Government officials sensed an existential threat. The Empire immediately struck back.

Days after the ruling, President Obama delivered his first State of the Union address. He directly attacked Citizens United and by extension the Supreme Court justices—some sitting only feet away.

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. 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.

Mindful of upcoming midterm elections, he didn’t let up the entire year. By May, Obama had refined a ubiquitous anti-Citizens United critique:

We’ve all seen groups with benign-seeming names sponsoring television commercials that make accusations and assertions designed to influence the public debate and sway voters’ minds. Now, of course every organization has every right in this country to make their voices heard. But the American people also have the right to know when some group like ‘Citizens for a Better Future’ is actually funded entirely by ‘Corporations for Weaker Oversight.’

In a June 2010 speech, he further elaborated:

Because of the Supreme Court’s decision earlier this year in the Citizens United case, big corporations . . . can buy millions of dollars’ worth of TV ads—and, worst of all, they don’t even have to reveal who’s actually paying for the ads. . . . These shadow groups are already forming and building war chests of tens of millions of dollars to influence the fall elections.

The president’s rhetoric was misleading and often outright false. But his message was clear: nefarious, secretive corporate interests are threatening our democracy; we need to do something. Despite the bruising health care fight, in early 2010 many still revered Obama and his nascent presidency. Undoubtedly among the acolytes were the political appointees and civil servants composing the executive branch. Many of them took his message to heart. A few weeks after the State of the Union, the Internal Revenue Service started targeting Tea Party applications.

The IRS Fulfills the Anti-Free-Speech Call

In February 2010 an IRS employee in Cincinnati flagged a Tea Party group seeking 501(c)(4) status because of “media attention.” For the next 27 months, the Service would not approve a single Tea Party application or those meeting other criteria such as, “educate the public through advocacy/legislative activities to make America a better place to live.” In February 2011, Lois Lerner, director of the IRS’s Exempt Office in Washington, ordered a “multi-tier” review of Tea Party cases. Many applications would languish through the 2012 presidential election. Some, frustrated with the process, simply gave up.

Advocacy groups have no mandate to tell ‘both sides of the story.’

The multi-tier review included scrutiny by a neophyte IRS tax lawyer with only months of experience. The Exempt Office tasked Hilary Goehausen with providing Cincinnati guidance on the languishing applications. As she later described to the House Committee on Oversight and Government Reform, her office became a Ministry of Truth. Goehausen looked for “propaganda,” describing some groups as “anti-Obama” and noting whether they discussed “both sides of an issue.” In an email to a colleague seeking to deny one application, she stated, “[T]here may be a number of ways to deny them. Let me talk to Sharon [Light] tomorrow about it and get some ideas from her as well. . . . This sounds like a bad org. :/ . . . This org gives me an icky feeling.”

Advocacy groups have no mandate to tell “both sides of the story.” They exist to push public policy, by definition they communicate through “propaganda.” The government, on the other hand, is constitutionally obligated to treat applications the same regardless of ideological viewpoint. Goehausen failed this mandate.

The Department of Justice Joins In

While a green government lawyer labored through applications with suspect criteria, others were more sinister. In 2010, the Department of Justice’s Public Integrity Section had gotten new leadership after reeling through the Ted Stevens trial debacle. Jack Smith, the new chief, was eager put the department’s recent past behind it and get his lawyers prosecuting again. A subordinate would later recall, “We all wanted trials . . . and [Smith] definitely tried to get us trials.”

Smith found a possible way to flex DOJ muscle when he read a New York Times article about political nonprofits in September 2010. As he would state in an email:

Check out [the] article on front page of ny times [sic] regarding misuse of non-profits for indirectly funding campaigns. This seems egregious to me–could we ever charge a [18 U.S.C. §] 371 conspiracy to violate laws of the USA for misuse of such non profits to get around existing campaign finance laws + limits? I know 501s are legal but if they are knowingly using them beyond what they are allowed to use them for (and we could prove that factually)?

Thus, the Department of Justice, searching for a nail to drop its hammer, found conservative nonprofits exercising First Amendment rights. Although they didn’t need any encouragement, Democrat Senators provided it anyway. On May 8, 2013, just two days before the IRS scandal broke, Lerner wrote of Democrat pressure on DOJ to prosecute conservative nonprofits:

I got a call today from Richard Pilger Director Election Crimes Branch at DOJ. I know him from contacts from my days there. He wanted to know who at IRS the DOJ folks could talk to about Sen. Whitehouse idea at the hearing that DOJ could piece together false statement cases about applicants who ‘lied’ on their 1024s . . . DOJ is feeling like it needs to respond. (emphasis added).

Back on October 22, 2010, Lerner gave DOJ and the Federal Bureau of Investigation 21 discs containing 1.1 million pages on conservative nonprofits, including confidential donor information. This blatantly violated federal law, as Pilger admitted in an interview with the House Oversight Committee:

Q:        And sir, [DOJ] has tools available to it to obtain information about donors from the IRS. Is that right?

A:        If I understand your question right, you’re asking about [DOJ’s] ability to obtain the names of donors to 501(c)(4)’s?

Q:        Yes sir.

A:        So through a court order that we refer to as an (i) order that is an order by a Federal District Court, the Executive Branch can, under certain circumstances, by meeting certain criteria reviewed by a federal judge, obtain information otherwise protected by tax law and [§] 6103 from any disclosure to the Department of Justice. As a general matter, can we simply go to the IRS and simply get information about donors to 501(c)(4)’s? No. Absolutely not. (emphasis added).

But that is exactly what happened. DOJ obtained no (i) order, presumably because no federal judge would have approved FBI snooping for donor information absent a cognizable legal reason. Why did they receive it? The IRS may have just been sloppy or, perhaps, days before the 2010 midterm elections the FBI and DOJ were compiling an enemies list. Although no investigations apparently went forward, when questioned about the existence of the database, DOJ initially lied, stating it contained only publicly available information. It finally admitted it contained illegally secured confidential donor information.

Obama Administration Resistance to Citizens United Infects Further Agencies

Federal resistance to Citizens United fanned beyond the major federal tax and law enforcement institutions and into independent agencies. Pressure both inside and outside the government bore down on the Securities and Exchange Commission, Federal Communications Commission, and particularly the Federal Elections Commission to authorize doxing anyone seeking to influence federal elections. At the SEC, a proposed rule would have required corporations to disclose all their political spending even though this has little to do with agency’s mission of protecting investors and facilitating capital formation. After a yearlong ordeal, Chairwoman Mary Jo White courageously nixed the idea in late 2013. Democrats have also pressured the FCC to publicize donor information for ads appearing on regulated media. This move, too, has thus far been thwarted.

Things haven’t gone as swimmingly at the FEC, the agency responsible for regulating federal elections. For years, Democrat commissioners refused to acknowledge Citizens United. They steadfastly blocked Republican efforts to update the regulations without major disclosure concessions. Only this past fall, under the leadership of Republican Chairman Lee E. Goodman, did one Democrat commissioner finally relent and vote with the three Republicans to clean the regulation book.

They’re Even Trying to Censor the Internet

But that same commissioner, Ann Ravel, has now set her sights on doxing web-based political activity. Currently the Internet exists as a free and open competitive market where ideas rapidly proliferate and disseminate. But Ravel has made overtures toward regulating this speech, which many warn would include news sites, blogs, and even Facebook and Twitter. As Goodman stated, “The Internet has democratized political discussion like no invention . . . And I think we need to leave hands off and the government needs to know when to leave well enough alone.” The Commission will revisit the issue in February.

Instead of allowing more freedom of speech as the case and the First Amendment demand, government institutions have responded like turf-protecting reactionaries.

Ravel’s overture exemplifies government reaction to Citizens United. Instead of allowing more freedom of speech as the case and the First Amendment demand, government institutions have responded like turf-protecting reactionaries. After the IRS scandal broke, the Service proposed new nonprofit rules so oppressive blowback was uniform across the political spectrum. The reaction was so intense the IRS scrapped the rules and started over.

The author of the Citizens United dissent, now-retired Justice Stevens, also fought back. He proposed a constitutional amendment that would allow government to regulate the publishing of political books. As he remarked in an interview, “Perhaps you could put a limit on the times of publication or something . . . you certainly couldn’t totally prohibit writing a book.” That statement came from a man one vote short of writing the controlling opinion in Citizens United.

But the Citizens United story doesn’t end with overt and sometimes illegal government hostility to the rule of law—that was only the first phase. The second phase included many of the same demagogues who publicly denounced the ruling, exploiting it for professional gain. President Obama’s election operation applied to the IRS as a “nonpartisan” organization under the same tax status as the forlorn Tea Party groups. Democracy Alliance, a secretive group of wealthy liberals that bans press from their confabs and refuses to disclose its membership, has hosted Citizens United-bashers such as Barack Obama, Joe Biden, Nancy Pelosi, and Elizabeth Warren. They accompany a bevy of leftist “dark money” 501(c)(4)s.

Harry Reid: Free-Speech Hypocrite Extraordinaire

But none match the audacity and shamelessness of Harry Reid. The erstwhile Senate Majority Leader spent much of 2014 railing against Citizens United and wealthy donors supposedly trying to “subvert democracy” and “buy America.” In 2012, he warned that without more government control of political speech, “17 angry old white men will wake up and realize they’ve just bought the country.”

Direct political advocacy from ‘dark money’ nonprofits accounted for about $316 million of $7 billion spent in 2012 and around $219 million of $3.67 billion spent in 2014. By comparison, Americans spent about $7.4 billion on Halloween this year.

Reid, whose virtues have never included racial probity, is apparently one of those old angry men. Senate Majority PAC, a Citizens United-enabled Super PAC, is staffed by Reid confidants for the sole purpose of keeping him in power. It spent almost $77 million dollars this cycle and is unsurprisingly affiliated with a “dark money” 501(c)(4).Equaling the hypocrisy is the deceitfulness these figures use to demonize Citizens United. Contrary to statements by Obama, Lerner, and a host of others, the case did not overturn a “century of law.” It overturned an outlier case from 1990 and part of another from 2003. The “100 years” rhetoric references the Tillman Act, which in 1907 banned direct corporate contributions to federal candidates. That law—named after South Carolina Democrat Ben “Pitchfork” Tillman, a virulent racist who despised corporate support of Republicans—remains in effect. Nor did the case introduce foreign money into federal elections.

Moreover, the lodestar Citizens United criticism that “dark money” organizations flood elections with negative advertising from undisclosed sources is underwhelming. Direct political advocacy from these nonprofits accounted for about $316 million of $7 billion spent in 2012 and around $219 million of $3.67 billion spent in 2014. By comparison, Americans spent about $7.4 billion on Halloween this year.

During the Citizens United oral argument, Chief Justice Roberts asked the government lawyer a hypothetical. If a corporation published a book that said on the very last page “Vote for X” could the government ban it? The lawyer answered affirmatively. Uneasiness filled the room. In hindsight, it was just the beginning. For the past five years, the national government has waged a war on the speech and association rights of its citizens. It’s not slavery, but it is one war the government should never be allowed to win.

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