Thursday, February 4, 2010

Thoughts Concerning Citizens United v. Federal Election Commission

Citizens United v. Federal Elections Commission 558 U.S. ___ (2010)
Argued March 24, 2009
Reargued September 9, 2009
Decided January 21, 2010

This recent decision touching on election finance laws concerning corporate contributions has created quite a stir over the last few weeks, even leading to a Presidential dressing down face to face with members of the Supreme Court during his State of the Union. That this case or its decision should be so controversial surprised me until I noticed a common thread among those who disagree with the outcome. Dissenters almost always argue that this decision is wrong because it will allow corporations to spend a great deal of money in future political campaigns, causing all sorts of woe. Whether that will actually be the case or not is actually irrelevant, however. The question at hand is whether the Federal Government had the authority to pass such a law at all, not whether the law was good or bad policy. Such policy outcomes should not even be raised in discussions concerning Citizens United as they are moot if there is no Constitutional authority allowing such laws to stand.

First off, let me remind the readers that Article VI of the Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

That same Constitution is amended in the first Amendment to state:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Simply put, 1) judges are bound to rule only on laws that are in accordance with the Constitution. 2) The Constitution explicitly prohibits Congress from passing any law abridging the freedom of speech. 3) Laws prohibiting speech are not in pursuance of this aspect of the Constitution; ergo, 4) such laws are not laws at all and judges have no responsibility to follow them.

I do not think anyone will question the deductive logic of this syllogism. The question now is, does the Bipartisan Campaign Reform Act of 2002 abridge free speech? I believe it did, as did the Court. If a corporation published any advocacy within 60 days of an election, it would have committed a felony. Clearly, there is a law banning an action, and in this case that action is political speech. The 1st Amendment exists mainly for the protection of political speech, which is considered to be the heart and soul of democracy itself. I ask my reader to please read the 1st Amendment again, in particular the part stating Congress shall make no law abridging the freedom of speech; note there are no exceptions made. Any case of Congress banning political speech by an American citizen or groups thereof (the right of the people peaceably to assemble) is unconstitutional.

It really is that simple. Congress cannot ban peaceful political speech (no exceptions); this bill banned speech for peaceful corporations; ergo, it is unconstitutional. Critics of this ruling need to show how Congress has the authority to ban political speech by corporations within the framework of the Constitution. The 1st Amendment is perfectly clear on this, so I am not sure where a critic could even begin to defend the constitutionality of such a ban, which probably explains why most critics have taken to populist attacks not based on the Constitution. There are significant flaws with that argument, too, but as I mentioned, that point is moot until some critic presents a convincing case that the Federal Government has the authority to ban such speech.

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