Ken Blackwell and Ken Klukowski: Citizens United Huge Step for Free Speech


ACRU Staff


January 31, 2010

This column originally appeared on on January 29, 2010.

On January 21, the U.S. Supreme Court empowered ordinary Americans to speak out on an equal footing with millionaires and the media in U.S. elections. Threatened by people being able to freely speak their minds, the president of the United States deceived the American people when discussing this court decision in the State of the Union.

In Citizens United v. FEC, the Court held that Americans acting together through a corporation or other type of group enjoy the same free speech rights that they enjoy individually. Noting that wealthy individuals can spend unlimited money on election ads for radio and television, the Court held that ordinary individuals could likewise pool their money together to engage in the same type of speech, striking down a federal law that made such corporate action a felony.

Writing the majority opinion, moderate Justice Anthony Kennedy declared that in our free country, the First Amendment provides that, “more speech, not less, is the governing rule.” The Court wrote that this case involved a domestic corporation, funded and run by U.S. citizens, seeking to distribute a documentary on a presidential candidate to inform voters’ choices. The Court noted that the Constitution allows combating corruption, but that no one alleged any corruption or quid pro quo here, and so all this amounted to was people joining together in an organization to express their views during the election.

Chief Justice John Roberts also wrote a concurring opinion, in which he explained that although the Court had to overrule two cases to arrive at its holding, that such a move was necessary. Those older cases held that corporations could use vast wealth to drown out average citizens and distort public debate. In Citizens United the Court rejected this anti-distortion rationale as badly reasoned and as having been proved unworkable, as people consequently send money into other types of organizations to get around this corporate ban. The twenty-year attempt to regulate political speech under the anti-distortion rationale had completely failed and made it more difficult for American citizens to speak, and so it must be overruled.

In another concurrence, Justice Antonin Scalia proved how this holding is squarely in line with the Founding Fathers’ original meaning in the First Amendment. The First Amendment protects “speech,” not “speakers,” so that speech is protected whether it comes from a journalist at a newspaper, a wealthy individual paying for radio ads, or a group of average people pouring their funds into a corporate group to speak for them. Public-interest organizations such as Citizens United, the National Rifle Association and the Family Research Council are corporations that act as a megaphone for ordinary people to be heard.

In that context, it’s utterly pathetic how the Far Left has been nothing short of apoplectic over this decision, with ultra-partisan Senator Chuck Schumer calling the Supreme Court’s well-reasoned decision “un-American.” Since when is it un-American to criticize the government or its candidates during an election? What vision of this country doesn’t allow people to speak out when casting their ballots?

Rather than denouncing these partisan screeds, the White House has joined in.

Even more than that, President Barack Obama did the unthinkable, using the national audience of the State of the Union to condemn the Supreme Court’s decision to the justices’ faces, surrounded by hundreds of irreverently-cheering congressional Democrats, crowding and leaning over the justices–who sat stone-faced and immovable as they were being pilloried.

All except for Justice Samuel Alito, quietly reacting to Obama’s claim that this decision allows foreign corporations to interfere in our elections by saying to himself, “Not true.” Indeed it’s not true, as pages 46 and 47 of the majority opinion expressly says that the Court’s holding in Citizens United does not extend to any foreign organization or funding.

The president deceived the American people to saying anything to the contrary. Either President Obama did this intentionally, in which case he must be called on it by the American people, or his team inserted this patently-false statement into the speech, in which case heads should roll both in his communications office and the White House counsel’s office.

The president is flailing here. The Supreme Court has made clear that businesses and corporations, both large and small, including unions and other groups, can all speak out on the issues affecting them during an election. The lopsided playing field is no more, as the First Amendment gives everyone an equal opportunity to express an opinion about political candidates. The people who create jobs can now fight back against policies that prevent them from creating jobs, and this endangers Obama’s agenda across the board, from taking over healthcare to enacting cap-and-trade taxes.

American groups had one hand tied behind their backs when they stepped into the ring against politicians. The Supreme Court restored the power of the First Amendment in Citizens United by untying those hands, and now all of us can wade into the fight.



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