The Costs of Free Speech: Democrats Turn to the Courts to Silence their Opponents

Despite raising record sums of money in 2008 and effectively killing public financing for elections forever, President Obama and his party still own the
issue of money in politics. Reducing byzantine complexity to a bullet point in a stump speech, corporations have been vilified as the enemy of participatory democracy, ignoring their relatively paltry contributions and the enormous influence wielded by labor unions through their own largesse.

Back in January 2010, the Supreme Court ruled 5-4 on Citizens United v. Federal Election Commission, effectively overturning a key provision of McCain-Feingold 2002 campaign finance legislation and two significant precedents, McConnell v. FEC (2003) and Austin v. Michigan Chamber of Commerce (1990), both which upheld restrictions on campaign spending by corporations during an election. More specifically, the relevant law banned corporations from “electioneering communication”, or any direct funding of political speech directly supporting a candidate within 30 days of a primary or 60 days of a general election. The case itself is a constitutionally complex one since it considers the extent to which corporations are due the same legal protections as persons, whether not-for-profit organizations should be understood as distinct from for-profit corporations under the First Amendment, and whether the nullification of long-standing constitutional precedent is consistent either with an ethic of judicial restraint or unrestrained activism.

Given the theoretical nuances of the competing interpretations provided by the two sides of the split decision, a casual observer might have expected the general tone of public commentary to be cautious and circumspect, carefully scrutinizing the logic of standing law, existing precedent, and the stakes regarding both the integrity of our electoral process and our right to free speech. Instead, the hyperventilated reaction from the left made it seem as if the American republic was standing on the precipice of self-destruction. The New York Times called the ruling a “blow to democracy” that “thrust politics back to the robber baron era of the nineteenth century.” Ruth Marcus at the Washington Post called it an “intellectually dishonest power grab” and bemoaned the “audacity of the result it has inflicted on the political process”. House Speaker Nancy Pelosi ominously warned that the “voices of average Americans could be drowned out by Wall Street banks, big oil, health insurance companies, and other special interests”. President Obama, not to be outdone in any contest of rhetorical hyperbole, remarked that the decision “strikes at our democracy itself” adding “I can’t think of anything more devastating to the public interest”. Apparently, corporate free speech is worse than terrorism.

Echoing Pelosi’s concern for the participatory rights of the common man, Obama also expressed anxiety that Citizens United “gives special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way-or to punish those who don’t…” However, Obama disingenuously omits the inconvenient fact that labor unions have also been unfettered by the Supreme Court decision, as well as political advocacy groups that run the ideological spectrum from the NRA to the Sierra Club. He self-servingly spins a delicate and complex balance of interests—safeguarding elections from the potentially corrupting influence of money and guaranteeing rights to free speech- as a Manichean tug of war between the very existence of democracy and the gathering demagogic threats to it. He never complicates this reductive and binary narrative with the good news that the government can no longer legally justify banning a union from paying someone to author a political book, or a corporation from publishing a book with one solitary line classified as political advocacy, or ban the distribution of political books on Kindle, or to block any video-on –demand service from showing a political movie our technocratic class decides is animated by apparently nefarious motives.

Obama’s ersatz populist rhetoric characteristically disguises ideologically narrow political trade-offs as win-win situations. In his inaugural speech, he hubristically denied that there are any potential tensions between our ideals and the practical demands of ensuring our security in an often less-than-ideal world. Likewise, in his speech overturning Bush’s restrictions on federal funding for stem cell experimentation, he rejected the possibility that there could any moral or political complexities born out of technological innovation that might justify some measure of political prudence, or even the admonishment of science, calling such nonsense a “false choice”. One powerful indication that the expression of populist sentiment is a technocratic sleight of hand is that a broad palate of contradictory political demands is presented as synthesized into one facile harmony that no rational human being could resist. Obama’s technocratic populism reveals itself in trying to combine the protection of our participatory rights and the political superintendence of what information we can be exposed to, from whom it can be communicated, and under what circumstances.

Unfortunately, the contempt for free speech and the public debate that typically ensues is one of the hallmarks of Obama’s technocratic approach to politics—in place of a healthy and democratic deference to public opinion we get the assurance of expertise that comes with the bureaucratic regulation of political expression. The key ingredients of President Obama’s election victory were technocratic competence and a therapeutic populism—his Ivy League intellect would be the key to solving our average Joe problems. Nevertheless, it’s not at all clear that the technocratic conception of politics is compatible with a robust deliberative democracy. Obama’s populism is based on the satisfaction of the will of the people—he decries, however sincerely or consistently, the undermining of general consent by the overrepresentation of special interests or of the wealthy. However, Obama’s conception of techno-politics is based on the embrace of a kind of techno-aristocracy—hyper-educated elites with specialized political or scientific expertise are singled out to manage the benighted rest of us. The conspicuous contradiction embedded within Obama’s political program is between his populist embrace of consent and his technocratic dismissal of it: the former presumes the prudence of ordinary common sense and the latter rejects the same common sense as radically untutored.

Obama’s elitist pretenses were never more obvious than in his reaction to Scott Brown’s extraordinary victory in Massachusetts, which was inarguably pregnant with a genuinely populist anger towards the president’s and his party’s policy agenda. Rather than, even for a moment, entertain the possibility that his policies are so unpopular because they are misconceived, Obama expressed surprise that the public demands he explain his platform and that they didn’t simply accept its irrepressible rationality: “ …I think we lost some of the sense of speaking directly to the American people about their core values are and why we have to make sure those institutions are matching up with those values. And that I do think was a mistake of mine. I think the assumption was, if I just focus on policy, if I just focus on, you know, this provision or that law, or are we making a good rational decision here…That the people will get it.” Moreover, he actually blamed the unpopularity of his health care reform efforts on the stubborn incomprehension of the public, childishly promising that “when they actually find out what’s in the proposals for insurance reform” his platforms “are actually very popular”. It must be exasperating to be saddled with the burden of leading such an uncomprehending constituency.

It’s important to note that Obama doesn’t blame the people entirely for their ill informed frustration-they have been the victims of widespread “fear mongering”. The real danger, as diagnosed by Obama and the Democratic party, is not that corporations will unduly influence politicians but that an inexpert public will find their positions persuasive. This is why Obama and his cohorts always single out corporations as sources of corruption but are silent about unions and find no cause for concern in the enormous largesse devoted to their own campaigns from single individuals (even the ones like George Soros who made their money on Wall Street). In this sense, the liberal obsession with campaign finance reform is animated by the same spirit that drives their attempts to resuscitate the Fairness Doctrine: the point is not to insulate elections from elitist commandeering, but to subject political speech to elitist regulation and, in turn, vilify those interests they suppose an unwitting public is powerless to understand and resist.

Unsurprisingly, liberals can mount rousing defenses of free speech when it suits their peculiar purposes; on January, 21^st, 2010 Hilary Clinton gave an impassioned speech defending the ‘free flow of information” on the internet unimpeded by governmental censorship. She cited President Obama’s own speech in China that “defended the right of people to freely access information, and said that the more freely information flows, the stronger societies become”. In fact, Clinton declared that “…censorship should not be in any way accepted by any company from anywhere. And, in America, American companies need to make a principled stand”. It is unlikely American corporations were copied in on this memo.

Despite their lofty rhetoric, campaign finance reform has, from its inception, been an example of the entrenched corruption it speciously claims to correct. In fact, attempts to systematically overhaul and regulate electoral contributions were originally a response to the unlikely success of Gene McCarthy’s 1968 Democratic primary bid against then incumbent Lyndon Johnson, which was widely attributed to sizable contributions from single donors. Today, the same legislative efforts are still thinly disguised as heroic maneuvers to rescue the common man from the corporate hijacking of American democracy but accomplishes little more than to shield the public from speech the liberal technocratic class finds politically inconvenient. Even if it were the case that corporate interests were as craven as Obama and Pelosi would have us believe, that in itself would provide no defensible justification for depriving the American people the opportunity to figure that out for themselves. As Scalia points out in his decision: “Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”

Unfortunately, all of the insincere rhetorical bombast forecloses a serious debate about the problems that really do infect our current campaign finance system. Even more importantly, it diverts our collective attention away from the more pressing and genuine constitutional criticisms of Citizens United; conservatives should earnestly reflect on Stuart Taylor’s argument in the National Journal (1/25/10) that, in overturning well established law and 63 years of standing precedent, the conservative wing of the Supreme Court has hypocritically indulged in its own brand of judicial activism. These are precisely the sorts of public debate that fortify and elevate the practice of American democracy and they should be encouraged and protected, rather than stymied, by those we elect to represent us.

Ivan Kenneally is Editor In Chief of the Daily Witness.

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