This past weekend marked the two-year anniversary of the U.S. Supreme Court’s ruling in Citizens United. Protesters, dubbed Occupy the Courts, gathered at the Court to voice their disapproval of the decision:
The irony of those protests is that you had groups of people getting together to speak out against a Supreme Court decision that protected the right of people to get together and speak out.
Indeed, people should not lose their right to free speech simply by exercising their right to freely associate. And when people group together–be it on the steps of a courthouse, in the form of a trade union or as a corporation–they don’t lose their freedom to speak out.
Occupy the Courts protesters also mistakenly believed that the Citizens United ruling held that “money is speech.” In fact, the Court never said that. Rather, it ruled correctly that money facilitates speech. And if the government has the power to control how much money you can spend speaking, then it effectively can control your speech.
Importantly, the law in question in the Citizens United case empowered the government to fine and even imprison ordinary people for engaging in certain types of speech. The government argued in court that it had the power to ban videos and books. I don’t believe that many Americans, including the Occupy the Courts protesters, think the government should be in the business of banning books.
Opponents of Citizens United seem particularly upset about the rise of Super PACs–a term used frequently this campaign season, often accompanied with a warning about their dangers. But the Citizens United ruling only indirectly affected the creation of Super PACs.
Further, Super PACs actually help to level the playing field.
Before Super PACs, wealthy people could spend as much as they wanted voicing their opinions in campaigns. For instance, Bill Gates could spend $1 billion on political ads, but if two people of more modest means decided to pool their money together to speak out, they would be limited to spending just $10,000 total.
In a case called SpeechNow.org v FEC, litigated by the Institute for Justice and the Center for Competitive Politics, the government ruled that the $10,000 limit was unconstitutional, giving rise to Super PACs. That is, Super PACs simply allow ordinary Americans to do what wealthy people have been allowed to do for decades.
And while Super PACs may help people to speak more effectively this election season, ultimately it will be voters who decide which candidates to support. As Paul Sherman makes clear:
The real question raised by Super PACs is, are voters going to be allowed to decide for themselves which messages they want to consider before they cast their ballot, or is the government going to decide that for them?
Citizens United correctly recognized that the First Amendment protects the right of voters to think for themselves. Moreover, by taking censorship of political speech off the table, Citizens United allows us to focus on the real problem with the political process:
It’s not that there’s too much money in politics, but that politicians control too much money. As long as government is in the business of spending trillions of dollars and influencing countless aspects of the economy and our lives, special interests will inevitably be drawn towards them.
The only solution, then, is to shrink government.