The First Amendment . . . United

• Citation: Vol. 27 No. 4
• Publication year: 2010

Georgia State University Law Review

Volume 27 , „

Article 3

Issue 4 Summer 2011

3-13-2012

The First Amendment . . . United

Joel Gora

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Recommended Citation

Gora, Joel (2010) "The First Amendment . . . United," Georgia State University Law Review: Vol. 27: Iss. 4, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/3

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THE FIRST AMENDMENT . . . UNITED

Joel M. Gora*

Introduction

Perhaps the most important thing that the Supreme Court does is to protect those individual rights and enforce those government limits that comprise our civil liberties. The Supreme Court did precisely that in its 2010 decision, very controversial in many quarters, in Citizens United v. Federal Election Commission.¹ Despite all of the sturm and drang associated with the case, to my mind, this was basically a very simple case. Maybe I am just being simple-minded, but the First Amendment to the Constitution says that "Congress shall make no law . . . abridging the freedom of speech; or of the press . . . ." In the McCain-Feingold law of 2002, more formally known as the Bipartisan Campaign Reform Act of 2002 (BCRA), Congress had done precisely that, by prohibiting all corporations and all labor unions from broadcasting advertisements near an election that merely name a federal candidate. And the Court's duty—its painful duty, as it said in McCulloch v. Maryland —was to say no, the Constitution does not let you do that. In doing so, the Court steered the First Amendment ship back to its proper path of deterring and disallowing government restrictions on political speech and did so for the proper reasons. And in telling Congress it had acted improperly, the Court discharged its historic obligations going back, of course, to Marbury v. Madison,⁴ to declare Acts of Congress inconsistent with the Constitution to be not the law of the land, i.e., to be "unconstitutional."

* Professor of Law, Brooklyn Law School. I want to thank President Joan Wexler and Dean Michael Gerber and the Brooklyn Law School Dean's Summer Research Stipend Program for supporting this article. In the interests of full disclosure, I should note that I was one of the lawyers challenging the campaign finance restrictions on First Amendment grounds in both Buckley v. Valeo, 424 U.S. 1 (1976), and Citizens United v. Fed. Election Comm 'n, 130 S. Ct. 876 (2010).

1. Citizens United, 130 S. Ct. 876 (2010).

2. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, §§ 203-204, 116 Stat. 81.

3. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819).

4. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

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Not everyone agrees that the Court got it right in the Citizens United case and properly exercised its power of judicial review. Indeed the reaction to the opinion has been incredibly intemperate in so many quarters. And, unlike few Supreme Court decisions in recent years, it not only influenced the conduct of the 2010 elections, but it was an issue in them. So the case for the decision's correctness will require somewhat more detail.

Here is one narrative about the case. Corporations are stealing our democracy. There has been an avalanche of secret corporate money, most of it coming from those sneaky foreigners, trying to buy our elections. This has been made possible solely by the Supreme Court's decision in Citizens United, where a cabal of five right-wing Justices, in a calculated fit of judicial activism, distorted and twisted the law to hand the 2010 elections to the right wingers and the Tea Partiers. Why, it feels like Bush v. Gore⁵ all over again. Had it not been for the Supreme Court's hideous decision—maybe the worst decision since Dred Scott⁶—the Democrats would have retained their huge majorities in Congress and the states and President Obama would have continued to have the enormous popularity he so rightfully deserves. All because of the Supreme Court decision in Citizens United. Indeed, they ought to be impeached and replaced by Justices who will be properly deferential to the wisdom and expertise of our elected officials, especially when they are writing the rules governing whether they will stay in power. If you read the New York Times, or listened to NPR or watched MSNBC, or took your cue from President Barack Obama and former House Speaker Nancy Pelosi, that is the story you probably heard.

5. Bush v. Gore, 531 U.S. 98 (2000).

6. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).

7. Speaking of cues, there reached a point where the coordinated narrative pattern became so obvious that it almost took on the aspects of an orchestrated campaign. A left-wing group would make the charge that they had discovered evidence that corporate money or foreign money or foreign corporate money was secretly overwhelming the election, the press would pick up the charge and give it credence, even though it was overstated at best and dishonest at worst, and then Democratic party leaders would trumpet the charge as evidence that the evils unleashed by the Supreme Court ruling were, as predicted, overwhelming us. The false claim that the Chamber of Commerce was using vast amounts of foreign corporate money to do so was a prime example. See Jeff Patch, Guilty Until Proven Innocent, Center for Competitive Pol. Blog, Oct. 7, 2010, http://www.campaignfreedom.org/blog/detail/

THE FIRST AMENDMENT

UNITED

There is a different narrative about Citizens United. It goes something like this. Congress passed a law which made it a crime for a group of individuals (who formed a corporation) to broadcast a movie or even advertisements of a movie which was highly critical of the leading candidate for President of the United States. When the group took their case to the Supreme Court, not only did the government defend that law, but the government also argued that Congress could pass a law making it a crime for a group of people like that even to publish a book that was highly critical of a leading candidate for President of the United States, or even of the President himself during an election season. Under this narrative, and given no more than the text of the First Amendment to guide us, it is almost the constitutional equivalent of res ipsa loquitur to conclude that the laws in question cannot stand and that the Court had a duty to call out the Congress for passing such a law. If you read the Wall Street Journal, or listen to Rush Limbaugh, or watch Fox News Channel, or take your cue from Senator Mitch McConnell, that's the story you heard.

In my view, the truth is not somewhere in between. Maybe it is because of my own personal narrative with these issues.

guilty-until-proven-innocent (describing circulation and coverage of claim). Indeed when the meme, as they say, reached a frantic peak, I was not surprised to see, prominently displayed in the New York Times' Week in Review, a picture of Richard Nixon, the ultimate liberal bogeyman, a reference to Watergate, and the suggestion that the campaign funding that the Supreme Court had so wrongly unleashed was at least as bad as that, if not worse. See Jill Abramson, Return of the Secret Donors, N.Y. Times, Oct. 17, 2010, at WK1, available at http://www.nytimes.com/2010/10/17/weekinreview/ 17abramson.html. So much of this was teed off by the President's false State of the Union charge that the Court's decision had opened the "floodgates" for foreign money to dominate our elections. But even the New York Times was moved finally to call the President out for his gross exaggerations of the role of foreign money in the elections. See Eric Lichtblau, Topic of Foreign Money in U.S. Races Hits Hustings, N.Y. Times, Oct. 9, 2010, at A14 (responding to the President's claim that "'groups that receive foreign money are spending huge sums to influence American elections,'" (citing President Obama) by noting that: "a closer examination shows that there is little evidence that what the chamber does in collecting overseas dues is improper or even unusual, according to both liberal and conservative election-law lawyers and campaign finance documents").

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I. The Arc of History: From Buckley to Citizens United

My own personal odyssey in dealing with the clash between campaign finance laws and First Amendment limitations goes back almost forty years to when I was a young ACLU lawyer and Congress enacted the Federal Election Campaign Act, which supplies the basic structure of federal election campaign law today. In 1972, before the ink had even been dry on the brand new law, President Richard Nixon's Department of Justice brought the very first lawsuit under the Act against a small group of left-wing dissenters who had paid for a two-page ad in the New York Times calling for President Nixon's impeachment for his conduct of the war in Cambodia.⁹ The government's legal theory was that it was an election year, the ad was critical of President Nixon, up for reelection, therefore, the money was spent for the purpose of influencing the outcome of the election and was punishable under the new law—a theory that the Court would resoundingly reject in the famous case of Buckley v. Valeo¹⁰ a few years later. If that situation sounds like deja vu all over again, with the Citizens United case involving a small group of right-wing dissenters who put out a movie/DVD critical of presidential candidate Hillary Clinton during an election year, it is. The Nixon impeachment ad was the classic example of the clash between campaign finance controls and free speech...