Pelosi’s “Grievous Error”: Why She’s Still Wrong and Citizens United Is Still Right
Evan Bernick /
In a Washington Post op-ed last week, House Minority Leader Nancy Pelosi (D–CA) claimed that the Supreme Court’s decision in Citizens United v. F.E.C. (2010) represents a “grievous error” that “shook the foundations of our democracy.” This claim has the character of an article of faith on the left, which regards Citizens United as the acme of judicial evil—a decision that allegedly enabled nefarious corporate special interests to snatch away government from the people.
Simply put, this claim is false. Pelosi’s criticism of Citizens United reflects profound ignorance of the content of the decision and a lack of appreciation for the constitutional principles that the Court affirmed.
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It is not true, as Pelosi states, that Citizens United overturned “decades of precedent.” In fact, it overturned a fairly recent decision concerning political speech that departed from precedent. Prior to Austin v. Michigan Chamber of Commerce (1990), the only restrictions on political speech upheld by the Court were those needed to avoid corruption or the appearance of corruption. In the seminal case of Buckley v. Valeo (1976), the Court held that “equalizing the relative ability of individuals and groups to influence the outcome of elections” is not a justification for restricting independent political speech. The Austin Court departed from Buckley and numerous other cases in upholding a Michigan ban on independent corporate expenditures on the grounds that the state had a “compelling interest” in “eliminat[ing] the distortion caused by corporate spending,” even absent corruption.
In overruling Austin, and striking provisions of the Bipartisan Campaign Reform Act of 2002, which generally prohibited corporations and unions (except for media corporations) from making independent expenditures on federal elections, the Citizens United Court affirmed principles that are as old as our republic. The Constitution does not allow the government to deprive people of their right to speak when they associate or discriminate between the institutional press and other speakers.
The Framers of our Constitution anticipated that political “factions” would emerge among the people, owing to the great variety of personal, commercial, and religious interests in an extended republic, and they knew that this would give rise to ideological clashes. But they also knew that any attempt to prevent factions from emerging would create more problems than it would solve. “It could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction,” wrote James Madison in Federalist 10, “than it would be to wish the annihilation of air…because it imparts to fire its destructive agency.”
What “liberty” is at stake? Pelosi writes, “It is the voices of the people, not the bank accounts of the privileged few, that determine the outcome of our elections and the policies of our government.” But the “privileged few” are “people” too, and the First Amendment guarantees them the same freedom to speak and influence the political process as anyone else. As Heritage senior legal scholar Hans Von Spakovsky explained in 2010, “Speech is an essential mechanism of democracy and the means to hold officials accountable to the people.” The Supreme Court rejected the government censorship that Pelosi supports.
It is Pelosi, not the Supreme Court, who has committed a grievous error. Before she criticizes Citizens United again, Pelosi probably ought to read it to see what’s in it.