Friday Interview: Attacks Against the Citizens United Ruling | Eastern North Carolina Now

    Publisher's note: The author of this post is the CJ Staff, who is a contributor to the Carolina Journal, John Hood Publisher.

Cato Institute expert assesses the likelihood that the case will stand

    RALEIGH     The U.S. Supreme Court case known as Citizens United has had a major impact on American politics in recent years. Will the high court's decision in that case stand in the years ahead? John Samples, director of the Center for Representative Government at the Cato Institute, addressed that question during a recent presentation to the John Locke Foundation's Shaftesbury Society. Samples also discussed the issue with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

    Kokai: For those who don't know, remind us briefly, what is the Citizens United case? What did it decide?

    Samples: Well, the first thing to keep in mind is Citizens United is probably one of the one or two major decisions by the Supreme Court in the area of campaign finance, which is also in the area of the First Amendment. So this is a free-speech case. It really is about the McCain-Feingold law, which was a campaign finance law passed about 10 years ago, at least in the first instance.

    But it was also about a big issue, which was, for a long time, Congress has banned corporations from just independent spending on speech. Now, what that means is, a corporation -- various kinds of business or maybe a labor union, too -- would go out and spend money directly on a message -- that is, an ad that appeared during an election period. In other words, they would not be giving money, like a contribution to an elected official or to someone running for office. They would be out there, spending money directly on speech. And inexplicably, for a long time, Congress had banned this. A corporation couldn't spend its money on speech.

    Now that would seem to raise real First Amendment issues, and it did. However, the court, the Supreme Court, for some years had different points of view about this. As long ago as 1978, the court said, yes, corporations have First Amendment rights. But they didn't strike down this ban on spending. Then again, in the late '80s, the court took a different position and said, well, you have to keep these corporations in check or they'll take over everything, basically.

    And then, by Citizens United, you finally got to the period where you had an organization trying to show a movie about politics. And the court said, you know, in no uncertain terms, the First Amendment means the First Amendment. If you're spending money on speech, if you ban spending money on that speech, you've banned the speech. You can't do that, Congress.

    And that's what it was about. It was really also, I should say, making a definitive statement. You're going to hear a lot of people saying, "Oh, corporations were always regulated in this way." That's not true at all. This was the definitive statement of something that had been going on for a long time.

    Kokai: In the wake of this decision, we have seen some changes, corporations playing a different role in our politics and the way they're participating. This [has meant] a real sea change, hasn't it?

    Samples: The sea change, I think, has come primarily by the principles that were laid down. The principles led to another case called SpeechNow.org v. Federal Election Commission. And in there, a federal court said, you know, it's also true that you can't -- if wealthy individuals or people, individuals want to get together and spend money without giving a contribution, but to spend it on speech -- you can't ban that. That should not have limits on it, like contribution limits.

    So we've seen that already, these $10 million [ad campaigns] and so on, $5 million spending during the Republican primary [for president]. That's because of that decision, not Citizens United. But corporations, for their part, we haven't seen that much yet. We don't know how much they're spending. And the reason for that is businesses are very wary of getting involved in politics. They like to have customers that are Democrats, Republicans. They don't really care about the partisanship or the ideology of their customers. They like to have customers. And if you get in these tough fights, and you get on one side or the other, your customers can start leaving. So I'm not sure we're going to see that much.

    Kokai: I take it that there is a lot of interest, especially among the critics of that decision [Citizens United], in finding ways to overturn it, get rid of it. What is the likelihood that this is going to stand?

    Samples: A lot of people who have supported these campaign finance laws for a long time, of course they're upset about it. Members of Congress are upset. There's a partisanship element to all of this. The Democratic Party has had a longstanding fear that they would be flooded by business donations and all of this sort of thing. They've come up with two basic ideas for overturning it.

    One is constitutional amendments. [There have] been 16 constitutional amendments reported to Congress. It seems unlikely that it will even get out of Congress, much less go to the states, which is a good thing. Those amendments, in the form they are, are, in my view, highly pernicious. They really give Congress total power over political speech in America, and that would be a big mistake.

    The other thing is, Citizens United said disclosure is fine. You can disclose the sources of spending. So Congress has tried to pass various kinds of disclosure laws, and they'll continue to try to do that, I think. The problem there is that these laws seem to be aimed not at actually providing information to voters, but rather deterring spending.

    Sen. [Charles] Schumer [D-New York], one of the people supporting this, has said you never can really overestimate the value of deterrence with these disclosure bills. Now, what did he mean by that? He meant that deterring people from spending money on political speech that he was afraid of, basically -- and his party was -- is what he was talking about. So disclosure bills in the past have been acceptable. They're certainly acceptable to the Supreme Court. The question is whether they're going to be too extreme.

    We've also seen an attempt early on, after Citizens United, to define all corporations as essentially foreign corporations, if they're run by or have someone in their management ranks that doesn't hold an American passport. And that would mean they couldn't spend money. So Congress is going to go through a period where it tries to overturn Citizens United, or to give people the means of attacking people's spending money until the point is reached that really members of Congress say, "Well, it's here. It's going to stay. We have to adapt to it."

    Kokai: Looking at the broader perspective, not just the court ruling and what it spelled out, where should we stand on this issue from the perspective of the Cato Institute, which is generally libertarian and thinks government should be involved as little as possible. Does Citizens United itself set out a good path for us, or are there other things that need to change?

    Samples: Citizens United is basically the core issue here. The First Amendment says, you know, that Congress shall make no law abridging the freedom of speech. It doesn't say, "Congress shall make no law abridging the freedom of speech of natural persons." The focus there is on the speech and on the freedom of the speech from government. So in that sense, clearly, Citizens United is a good libertarian decision.

    Down the line we're going to have to see how this works out. I don't think amendments are a major threat to it. I think, essentially, we'll go through a few cycles here and the worries that people have, and frankly a lot of those worries are partisan and ideological. If the situation goes forward, and those nightmares that people have, these great fears they have, turn out as they have turned out in the past -- to be really just bad dreams and not reality -- I think we'll see that there might be an adjustment where everyone says, "You know, this is working pretty well." There'll still be some complainers all along, but I don't think there'll be this massive resistance, and I think we'll have a much more liberal political system, in the libertarian sense.