Adam Schiff and a group of Democrats have introduced a proposed constitutional amendment to overturn the Citizens United decision, one of the greatest free-speech victories in history.
It’s just a political stunt, of course, as Schiff doesn’t have the votes. But it does reflect the authoritarian outlook of the contemporary left on free expression. From the day the decision came down, 13 years ago this week, Citizens United was a rallying cry for those threatened by unregulated discourse. President Barack Obama infamously, and inaccurately, rebuked the justices during his State of the Union for upholding the First Amendment. Since then, Democrats have regularly blamed the decision for the alleged corrosion of “democracy.”
Recall, however, that Citizens United decision revolved around the federal government’s banning of a documentary critical of 2008 presidential candidate Hillary Clinton before the Democratic primary elections. At the time, McCain-Feingold made it illegal for corporations (groups of freely associating citizens) and unions (ditto) to engage in “electioneering” a month before a primary or two months before a general election. It was outright censorship. In oral arguments, then-Solicitor General of the United States, now-Supreme Court Justice Elena Kagan initially contended that the federal government had the right to censor books that “express advocacy.”
Also recall that “campaign finance” laws — speech codes, in reality — were written by politicians and defended by a media encumbered by any limitations on their own free expression. These detestable laws prohibited groups of citizens from assembling and pooling their resources to engage more effectively in what is the most important kind of political expression at the most vital time, right before an election.
Schiff’s amendment would overturn Citizens United, and thus the First Amendment, and empower state and federal governments to enact “reasonable, viewpoint-neutral” limitations on speech that “influences” elections.
For one thing, even if wholly neutral restrictions of political speech were possible, they would still be restrictions on expression. It doesn’t matter one whit if you find those restrictions “reasonable” or “neutral.” The right of free speech isn’t contingent on fairness or outcomes or your good faith limitations. It is a free-standing, inherent right protected by the Constitution, not prescribed to us by the state in portions. It’s amazing that this has to be said.
Moreover, do Democrats trust Kevin McCarthy’s conception of “reasonable”? Because I don’t. Nor do I trust Hakeem Jeffries or that weasel Schiff, who has already personally engaged in censoring dissent. As Lois Lerner could tell you, any law empowering bureaucrats to define political speech will be arbitrarily enforced and, inevitably, abused. The only “viewpoint-neutral” position on speech is that it’s none of the state’s business.
Then again, not even the amendment is neutral. Section 4 of Schiff’s proposal offers an exemption to the “press.” Who are the press? Bureaucrats, no doubt, will make that determination. Schiff knows that most large communication companies already work for Democrats. The big studios produce movies and documentaries with one ideological viewpoint; and major news outlets give one side billions in in-kind contributions.
The amendment would strip one group of its power to compete in the marketplace of ideas. “By taking the right to speak from some and giving it to others,” Justice Anthony Kennedy wrote for the majority in Citizens United, “the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.”
Schiff’s amendment could also be used to strip people of anonymity. “Dark money” has been a bogeyman of the left for years, treated as one of the most corrosive elements in contemporary politics — even though leftists are more reliant on anonymous big-dollar money than conservatives. Of course, the expectation that private citizens have any responsibility to publicly attach their names to political speech — as Publius might tell you — is destructive nonsense.
“Anonymity is a shield from the tyranny of the majority,” the 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission famously noted. It “exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation … at the hand of an intolerant society.” There are entire genres of mainstream “reporting” that exist to dox heretics and punish dissent and engage in struggle sessions. Leftists want to create as many Brendan Eichs as possible to chill speech.
Schiff claims he wants to “return power to people” by allowing the state to prescribe the way they can participate in political debate. Schiff’s amendment includes restricting corporations from spending “unlimited amounts of money to influence elections.” Corporations have been banned from donating directly to candidates since 1907. But why shouldn’t private entities, groups of people, be allowed to “influence” politics? Anyway, you can already imagine the malleability of the word “influence.” Will California ban corporations from influencing green policy? Or only from influencing cultural policy? Boy, I wonder.
A decade ago, politicians would give us some perfunctory words about the importance of free expression. Those days are gone. The bogus panic over “disinformation” — with free will, you guys are far too susceptible to bad ideas — has given them the excuse to wring their hands over the dangerous excesses of the First Amendment.
These days a person can contribute as much money as he pleases to any independent group that shares his values. The notion that there should be restrictions stopping you from airing those views, whether you’re a billionaire or a poor student, is fundamentally un-American and authoritarian.