The “First Principles” on which this country were founded are the principles that the Heritage Foundation works to advance everyday. In today’s landmark U.S. Supreme Court decision of Citizens United v. FEC, a conservative majority on the Supreme Court upheld some of the most important principles: the right to engage in free speech, particularly political speech, and the right to freely associate.
It is no surprise that these rights are in the very first amendment in the Bill of Rights of the U.S. Constitution. The Founders, who had fought a long, hard war with the English crown to establish our independence, knew that the ability to associate freely (think the Sons of Liberty) and to engage in political speech without being censored by the government were fundamental rights crucial to our republic. That is why the Supreme Court’s decision throwing out a federal ban on independent political expenditures by corporations (including non-profits) is a return to, as the Court said, “ancient First Amendment principles.”
The Supreme Court overturned its prior decision in Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC. It rejected the very idea that the government can decide who gets to speak and that the government can actually ban some from speaking at all, particularly those doing their speaking through associations of members who share their beliefs.
Almost every one of the many associations we have in this country (no matter which side of the political aisle they are on), from the NAACP to the Sierra Club to the National Rifle Association, are also corporations. Yet those corporate associations were prohibited under penalty of criminal and civil sanctions from expressing the views of their members in the political arena over which particular candidates should be elected to uphold the positions on important issues of public policy that their members believe in unless they complied with certain very restrictive, complex provisions.
For-profit corporations and labor unions were also prohibited from engaging in independent political activity even though their businesses and the jobs of their employees and members can be greatly affected, damaged, or even lost because of the actions taken by elected members of Congress. There is no rational reason why they should not be able to engage in independent political activity.
The Court, led by Justice Kennedy, held that the First Amendment stands against attempts to distinguish among different speakers, which may be a means to control content. In so doing, the Court declared that the government cannot impose restrictions on certain disfavored speakers such as corporations.
The Court also found that free speech rights under the First Amendment do not depend on a speaker’s financial ability to engage in public discussion – the fact that some speakers may have more wealth than others does not diminish their First Amendment rights.
Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption, the basis for upholding other campaign finance restrictions. Speech is an essential mechanism of democracy and the means to hold officials accountable to the people. As such, political speech must prevail against laws that would suppress it.
Those who criticize this decision have lost sight of a basic truth: the answer to speech they disagree with is not to restrict that speech, but to answer it with more speech. This decision will ensure that, as Justice Kennedy said twenty years ago in his dissent in the Austin case, there is no stifling of “the voices of some of the most respected groups in public life on subjects central to the integrity of our democratic system.” The First Amendment specifically says that Congress shall pass no law abridging the right to speak. Justice Scalia properly addresses the applicability of this right to corporations (profit or nonprofit):
The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speakers, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals…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.