Freedom Line Blog

In one of our latest Liberty Update commentaries, we note how leftists believe in 1st Amendment free speech rights for powerful mainstream media organizations, but not for everyday citizens like the plaintiffs in Citizens United, who need protection most of all.  A timely new book entitled “The Soul of the First Amendment” by eminent constitutional lawyer (he worked on both the Pentagon Papers case and Citizens United) Floyd Abrams surveys the history of 1st Amendment disputes, and dismantles government attempts to limit free speech.

Yesterday’s Wall Street Journal book review praises Mr. Abrams’s effort, and highlights one moment from oral argument over Citizens United before the Supreme Court, when then-Solicitor General Elena Kagan openly admitted that a ruling against the plaintiffs in that case would’ve allowed the federal government to prohibit political pamphlets:

His legal defense of the New York Times over its decision to publish the Pentagon Papers in 1971 made him a hero to the left.  Four decades later, he earned enmity from former comrades by appearing before the U.S. Supreme Court in 2010’s Citizens United case, which urged the court to affirm the right of corporations to spend money on political campaigns.  In the end, the court did – and Mr. Abrams found himself aligned with the political right.  He was particularly chilled by a statement made by Elena Kagan, then President Obama’s solicitor general and now one of the Supreme Court’s more liberal justices who, during oral argument, acknowledged that her constitutional theory would permit the banning of political pamphlets by the federal government.  Indeed, the more you may revile Citizens United (or think you do), the more essential it is to read Mr. Abrams’s principled defense of that decision and how to learn how he was persuaded to change his mind about the fundamental liberty inherent in campaign spending.”

In other words, opponents of the Citizens United decision would accept restrictions that could’ve banned The Federalist Papers or Thomas Paine’s Common Sense.  The implications of that should terrify and motivate Americans who believe in the freedom of speech for everyday citizens.

David Bossie of Citizens United has come out swinging against Labor Secretary nominee Thomas Perez. Not only does Bossie hit Perez for things I’ve mentioned in the past, such as unlawful use of private e-mails for government business (and then testifying falsely about the same), but Bossie also notes this:

Thomas Perez has also waged war against people of faith and the pro-life movement. For example, he brought a case against Mary Susan Pine in Florida Federal Court. Pine is a woman who for more than two decades engaged in friendly sidewalk counseling for women seeking abortions in West Palm Beach. While engaging in this ministry, Ms. Pine was notified by police that she had violated city and state traffic laws on one particular day, then the Justice Department brought charges under Freedom of Access to Clinic Entrances (FACE). However, because FACE allows an exemption for peaceful demonstration, it was immediately tossed out of court and Perez’s division was charged court and attorney fees.

When it says Perez’ “division” had to pay court fees, what it means is that American taxpayers had to pay the fees and penalties for Perez’ improper attempt to prosecute a peaceful, innocent woman.

As I’ve noted before, Perez and his team have quite a losing streak in court. Not only are they radical and dishonest, but they are bad lawyers, too:

Indeed, Perez doesn’t even seem to be a very good lawyer at all: His positions also have been rebuked by courts in Arkansas (about the Civil Rights for Institutionalized Persons Act), again in the D.C. District Court, in New York on an education case (U.S. v. Brennan), in a Florida abortion case where Perez’ team was abusively prosecuting peaceful protesters, and most particularly in a major Perez loss in Florida when trying to force the state not to remove non-citizens from its voter rolls.

Perez is a loser and a fraud.

This is why we do what we do, and why CFIF’s mission is important.

Today, in conjunction with the Hispanic Leadership Fund, CFIF secured a critical victory on behalf of the First Amendment rights to free speech and free association.  In a unanimous decision that arrived just four days following oral argument on the issue, a notably quick turnaround time when rulings typically arrive months later, the United States Court of Appeals for the District of Columbia Circuit reversed, vacated and remanded a recent lower court decision infringing upon the right of the people to engage in protected speech and associate in privacy.  The case was initiated by Representative Chris Van Hollen (D – Maryland), who apparently never internalized the First Amendment’s explicit provision that, “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

Vindicating the Supreme Court’s Citizens United and Wisconsin Right to Life decisions, the Court of Appeals noted the muddled nature of campaign finance regulations generally:

After reviewing the record with care, we conclude that the District Court erred in holding that Congress spoke plainly when it enacted 2 U.S.C. § 434(f), thus foreclosing any regulatory construction of the statute by the FEC.  The statute is anything but clear, especially when viewed in the light of the Supreme Court’s decisions in Citizens United v. FEC, 558 U.S. 310 (2010), and FEC v. Wis. Right to Life, Inc. (“WRTL II”), 551 U.S. 449 (2007).”

This constitutes an enormous and welcome win for the freedoms of speech and association, one that all who value the First Amendment can celebrate.

Somewhat lost amid today’s Supreme Court ruling on Arizona’s SB 1070, the Court reinforced First Amendment free speech rights as affirmed in Citizens United v. Federal Election Commission.  In fact, the Court did so without the need for full review, oral argument and exhaustive written briefing.  Demonstrating in this instance that brevity is the soul of sound jurisprudence, the Court in American Tradition Partnership v. Bullock overturned a Montana Supreme Court decision favoring a ban on political speech that flatly contradicted Citizens United.  The single-page majority opinion is notable for its cogency:

A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”  Mont. Code Ann. §13–35–227(1) (2011).  The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment.  2011 MT 328, 363 Mont. 220, 271 P. 3d 1.  In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.”  558 U. S. ___, ___ (2010) (slip op., at 26) (internal quotation marks omitted).  The question presented in this case is whether the holding of Citizens United applies to the Montana state law.  There can be no serious doubt that it does.  See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

The petition for certiorari is granted. The judgment of the Supreme Court of Montana is reversed.

It is so ordered.”

The First Amendment, the Constitution itself and free speech have been vindicated.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

Politico usefully rebukes the conventional wisdom about money in politics with a look at this year’s self-financing candidates:

…

The one winner in the group is Republican businessman Ron Johnson, who beat Sen. Russ Feingold (D-Wis.), one of the Senate’s most ardent champions of campaign finance reforms that would limit the role of big money in federal races.

In Connecticut, Republican Senate nominee Linda McMahon spent $47 million of her own money. In Florida, Jeff Greene dropped $24 billion attempting to get the Democratic nomination for the U.S. Senate. In California, Carly Fiorina invested $5.5 million out of her own accounts for a shot at the upper chamber, though that number paled in comparison to the $143 million ponied up by the GOP gubernatorial nominee, Meg Whitman. What do they all have in common? They all lost.

For the professional fretters who rent their garments in support of McCain-Feingold and gnashed their teeth over the Supreme Court’s Citizens United decision, there’s a valuable lesson here: money buys you the means to make your case, not the right to have that case accepted by the voters. Big money in political races can be just as much a drawback as an advantage. And if you don’t believe that, just ask the organized labor establishment, whose investment in this year’s races turned out to be a toxic asset.

For all the ink spilled trying to divine the cause of the present financial crisis the most stirring theory is that culture – not capitalism – failed America.  It’s a theory that lies at the heart of the Citizens United documentary “Generation Zero” and is discussed in eye-popping detail by William Cohan in today’s New York Times.

Asserting the commonsensical notion that people do what they are rewarded to do, Cohan (a former denizen of Wall Street) claims that when firms morphed from partnerships to corporations they simultaneously shifted the risk of loss from executives to stockholders.  That simple change in legal form privatized profits while socializing losses.

Here’s Cohan’s solution:

To my mind, its central feature should be that each of the top 100 executives at Wall Street’s remaining “systemically important” firms be personally liable for the risks they take. Not just their unexercised stock options or restricted stock, but every asset they have in their possession: from their cars to their fancy homes to their bulging bank accounts.

…

Pretty harsh, right? Maybe, but Wall Street deserves no sympathy. Had this security, or something like it, been in place at every Wall Street firm five years ago, there would have been no mortgage bubble, no financial crisis, no deep and unsettling economic recession with nearly 10 percent unemployment, no need for the Troubled Asset Relief Program, and no need for Dodd-Frank or Basel III.

Why? Because human beings do what they are rewarded to do — especially on Wall Street — and if they are rewarded for taking prudent and sensible risks, that’s exactly what they will do.

With the ongoing write downs in the wake of Obamacare, and the appointment of two majority making union lawyers to the National Labor Relations Board, many in the private sector could be excused if they pine for the days when business was usual.  Add cap and trade to the mix, and it’s entirely possible that Progressives imagine profit to be just another word for unclaimed tax revenue.

So thank goodness for the Supreme Court’s Citizens United decision restoring First Amendment speech rights to groups as well as individuals just in time for the 2010 midterm elections.  Since the Obama Administration is focused on several other toxic experiments in social engineering, any substantive legislative response to Citizens United is unlikely until next year.  Thank goodness.  In the meantime, businesses and the people who give them life have a unique opportunity to use their constitutional right to free speech in support of another pillar of the American Experiment: the free market.

One commercial I’d like to see features several different people providing the kinds of services that Progressives love to claim for government.  If you haven’t before, check out the concepts behind CVS’ MinuteClinic, the KIPP Academy, and Grameen America microfinance bank.  They and many others prove daily that – if given enough space – the free enterprise system is the quickest, best, and most sustainable way to enhance wealth and well being, for everyone.

The Obama Administration continues its bizarre behavior in selecting targets for its wrath.

For reasons unknown, the Administration has ostentatiously and histrionically escalated its condemnation of Israel, our most loyal Middle East ally.  Why?  Merely because Israel announced preliminary approval (the fourth stage of a seven-stage bureaucratic planning process) to build housing units within its own municipal boundaries in Jerusalem.  Meanwhile, as The Wall Street Journal reminds us, the Obama Administration continues to treat such anti-American rogues as Libya, Iran, Venezuela and Syria with kid gloves.

Then yesterday, chief White House heavy David Axelrod characterized our First Amendment free speech and petition rights as “a threat to our democracy.” The First Amendment explicitly states that “Congress shall make no law … abridging the freedom of speech … or of the right of the people … to petition the Government for redress of grievances.”  Despite those protections, federal laws like McCain/Feingold literally prohibited, under penalty of imprisonment, political speech within 30 and 60 days of an election.  Fortunately, the United States Supreme Court struck a blow for First Amendment rights in January by overturning some of those restrictions in Citizens United v. FEC.

The Founding Fathers would not have taken kindly to McCain/Feingold’s unconstitutional restrictions on free speech and the right to petition Congress.  To them, abridgment of free speech was a threat to democracy.  In contrast, that towering intellectual and philosophical sage David Axelrod considers free speech itself “a threat to our democracy.”

In this week’s Freedom Minute, CFIF’s Renee Giachino discusses the recent U.S. Supreme Court decision in Citizens United v. FEC and the left’s response.

The recent weeks haven’t been kind to President Obama.   Support continues to drop for his health care bill, his poll numbers are falling and his filibuster-proof majority has been lost.

Well, last night, President Obama took out some of his frustration by criticizing the Supreme Court in front of a national audience.  As the President, he has the power to trounce on judicial independence, but his display last night was historic.

According to the Legal Times, only once has a President publicly criticized the Supreme Court during a State of the Union address.   Not surprisingly, it was President Franklin Roosevelt in 1937, and even FDR didn’t call for Congress to overturn the Court (thought the justices would eventually start to capitulate shortly after the address).

Here is FDR’s attempt at judicial intimidation:

The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government.

Here is President Obama’s criticism:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

As Justice Alito gestured during the remarks, the Court did not reverse “a century of law” in its Citizens United decision.  Austin v. Michigan Chamber of Commerce was decided in 1990, not 1910.  Linda Greenhouse over at the New York Times calls out the President on this as well.

As a former constitutional law professor, President Obama should either fire his speechwriters or hit the books.

Yesterday’s United States Supreme Court decision in Citizens United v. Federal Election Commission was a welcome victory for free speech and the First Amendment.

By overturning byzantine prohibitions against the very type of fundamental electioneering speech most valued by our Founding Fathers when they drafted the First Amendment itself, the Court reclaimed enormous territory in freedom’s war against incumbent-protecting censorship.

While welcome, however, the decision also carries political implications about which conservatives must remain alert.  Liberals, predictably, hysterically focus upon the sinister prospect of free speech for those big, bad, evil corporations that actually employ people and produce things.  For instance, resident MSNBC village idiot Keith Olbermann rendered himself not only the world’s worst person, but also the most idiotic, when he suggested the decision was even worse than the infamous Dred Scott slavery decision of 1857.

But apart from the Olbermann crowd’s inanity, one negative prospect is Big Labor’s new ability to engage in direct electioneering communications.

Don’t get us wrong – union bosses should be just as free as other groups to exercise their free speech rights, so long as the dollars used to fund that speech aren’t forcibly wrenched from reluctant members’ wages.  As long as Big Labor isn’t afforded particularized protected status, fair is fair.

Nevertheless, expect new union efforts to not only flood the airwaves, but also to increase the amount of members’ dues used to fund those efforts, as well as even more pressure to enact legislative agenda items.  In particular, we can anticipate all new efforts to enact card-check, which would literally eliminate the secret ballot in union elections, and empower federal bureaucrats to dictate wages and working conditions via mandatory arbitration. In 2008 alone, two unions (the American Federation of State, County and Municipal Employees and the infamous Service Employees International Union) spent $58 million of their hard-working members’ wages on political campaigns.

They’ll only scheme to increase that amount now.

Card-check legislation appeared all but dead, but this device to increase Big Labor’s membership rolls, and consequently the amount of money it can spend electing liberals across the country, will receive even more push now.

We applaud the Supreme Court’s decision, but we conservatives must remain wary of Big Labor’s upcoming campaign.

If there were any lingering questions about this Administration’s stance on free speech, all doubt was removed last night when the White House issued this response:

“With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

Right.  When did censorship become as popular as organic foods in this country?  Mr. President, you also failed to mention that this decision will be a huge boon for unions, major contributors to your campaign and the Democratic Party.  Citizens United is a victory for both the left and the right, a victory for anyone who is opposed to jailing someone over broadcasting a political position.

This Administration claims to be “liberal,” yet it also took the position that banning books that contained one line of advocacy was a felony.  What would have happened if McCain-Feingold were around in the 18th Century when the Federalist Papers were being printed with small business paper?  Locking people up for political speech is as American as burning books or jailing political enemies.  Why stop now, Mr. President?

The end of the world is still far off in the distance.  As former Federal Election Commission Chairman Bradley A. Smith mentioned today, 28 states already allow corporate and “special interest” spending.  States like Oregon, Virginia and Utah are hardly known as bastions for corrupt political activity, even though they allow corporations to take a stance when issues are debated in the public circle.

Harsh critics of Free Speech claim that because corporations don’t vote that they shouldn’t be afforded basic First Amendment protections.  So, if the First Amendment doesn’t apply to corporations, perhaps they shouldn’t pay taxes?

The Supreme Court has already held that the Constitution, in most parts, applies to corporate entities.  Is the First Amendment inapplicable when the actor grows richer?  What about the Takings Clause in the Fifth Amendment?  Should corporations and other for-profit entities be denied due process of the law simply because they don’t vote?  I’m sure politicians would approve of that but thankfully they haven’t overturned the Fifth Amendment … yet.

Lacking voting rights is an argument for this decision, not against it.  Corporations and non-profits lack the right to vote and can’t even contribute directly to political parties unless they choose to form expensive political action committees (PAC).  Independent expenditures are one of the few ways businesses can influence legislation that has a direct impact on their existence.

Let’s also remember that 99% of corporations in the U.S. aren’t rich or powerful.  The language in McCain-Feingold was woefully overbroad and applied to every entity from General Electric to your local florist.

Americans should be rejoicing because the Administration and most politicians hate this decision.  That’s wonderful. Anything that upsets career politicians is normally good for the rest of the country.   Then again, Congress should be happy; their enemies are no longer hidden behind the veil of those evil 527 groups.

With the blackballing of Fox News, his appointment of Justice Sotomayor, who voted against free speech, and his response to Citizens United, President Obama has made clear what many suspected years ago.  The President is not a fan of free speech, that is unless he’s breaking campaign promises and drowning out his opponent with over $700 million in union-funded spending.  As much as his speech might have been repulsive to some, President Obama had every right to spend money spreading his views.

Maybe it’s not free speech to which the President is opposed; maybe it’s just a little healthy competition.

Rather than trudge through the entire 183-page decision in Citizens United, here are a few choice passages from the opinion. Enjoy.

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.

In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections. It feared, however, that both the film and the ads would be covered by §441b’s ban on corporate funded independent expenditures, thus subjecting the corporation to civil and criminal penalties under §437g.

There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others. A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit.

In McConnell v. Federal Election Comm’n, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, that political speech may be banned based on the speaker’s corporate identity. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] history.” There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a specific candidate. Michigan law, however, prohibited corporate independent expenditures that supported or opposed any candidate for state office.

Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures.

The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form.

Austin interferes with the “open marketplace”of ideas protected by the First Amendment. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations.

Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers.

The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

The Supreme Court, unexpectedly, did not issue its opinion in the First Amendment case of Citizens United v. FEC.  The Court heard oral arguments last September and many court watchers expected an opinion today.

Perhaps this delay means the opinion is larger and more sweeping than many observers anticipated.  The first major Supreme Court case reviewing McCain-Feingold, McConnell v. FEC, weighed in at 298 pages.  Will Citizens United top that figure?

The Court likely made up its mind last year but perhaps the long delay means that the lobbying continues.

Stay tuned for more coverage.

Because of a meeting this morning, morning links are now afternoon links, at least for today.

WSJ – Biden Touts Stimulus
Steny Hoyer – Today’s House Schedule
Reason – Naive First Amendment Question
Government Bytes – Five Ideas the President Should Have
Chris Cillizza – What Obama Should Say
Washington Post – Previewing VA and NJ
Political Wire – Van Jones is Back…

C-SPAN – Oral Argument Transcript from Citizens United v. FEC

Federal Debt: $11.806 trillion