Fact: Amendment No. 1 to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Fact: In 2002, Congress passed legislation prohibiting corporations and unions from using their general treasury funds to advocate for the election or defeat of a candidate for public office within 30 days of a primary election or within 60 days of a general election. The law contains civil and criminal penalties for those who violate it.
Fact: In 2008, a lower federal court, based on the 2002 law, barred Citizens United, a nonprofit corporation, from releasing a documentary critical of then Senator Hillary Clinton, a candidate for President of the United States, within 30 days of primary elections.
Fact: Last week, the U.S. Supreme Court ruled the law prohibiting political spending by corporations in candidate elections was unconstitutional. The Court concluded the First Amendment prohibits the government from regulating political speech. According to the Court’s majority opinion, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Fact: Liberals are berserk over the Court’s decision. Without mentioning the Constitution, President Obama, who once taught constitutional law, called the decision “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.” (He forgot to mention unions.) Even though the Court’s decision was based on a law enacted in 2002, U.S. Senator Charles Schumer, the whiner from New York, said, “With the stroke of a pen, the Court decided to overrule the 100-year-old ban on corporate expenditures and override the will of millions of Americans who want their voices heard in our democracy.” The New York Times published an editorial entitled “The Court’s Blow to Democracy.” The Times said the Supreme Court “has thrust politics back to the robber-baron era of the 19th century” and “has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.” In a tirade about the decision, MSNBC’s Keith Olbermann said, “This is a Supreme Court-sanctioned murder of what little actual democracy is left in this democracy.”
Let me admit I’m a simple-minded individual. I’m not as sophisticated and intelligent as my liberal friends. But it seems to me there was one glaring omission from the condemning comments of those who are outraged by the Court’s decision. What was missing was any reference to the express language of the Constitution. The Constitution clearly and unambiguously prohibits Congress from making laws “abridging the freedom of speech.” There is nothing in the First Amendment or elsewhere in the Constitution stating corporations or other associations of citizens are not entitled to freedom of speech. As a result, the Court’s decision, to me, was a no-brainer. I should add, however, that the four liberal justices on the Supreme Court voted in favor of upholding the law restricting political speech. These justices used their liberal logic to conclude the Constitution permits—rather than forbids—Congress to pass laws “abridging the freedom of speech”.
Those who are objecting to the Court’s decision obviously believe the language of the Constitution should be irrelevant as long as they can make a strong policy argument in favor of their position. In other words, the constitutional prohibition against laws restricting freedom of speech is irrelevant as long as the restrictions on freedom of speech have merit in the minds of those who favor the restrictions.
There are, of course, some provisions of the Constitution that are very general in nature and are subject to legitimate differences of opinion regarding their scope. For example, Section 8 of Article I of the Constitution gives Congress the power to regulate interstate commerce. The power to regulate interstate commerce has been relied upon by Congress over the years continuously to expand the power and reach of the federal government. Reasonable people can disagree over the scope of the Constitution’s interstate commerce clause. It is much more difficult, however, to find a constitutional justification for prohibiting speech. The lack of a constitutional justification for prohibiting speech does not get in the way of those who want to do so. They simply ignore the Constitution and base their arguments on policies they believe to have merit without regard to whether those policies are prohibited by the Constitution.
It is true the Supreme Court, prior to its decision last week, had previously upheld laws restricting political speech by corporations. Those who are enraged by the Court’s decision are arguing the Court should have followed its own precedents even if those precedents were inconsistent with the express language of the Constitution. I believe the Constitution—not the Supreme Court—is supreme. The Supreme Court has made many mistakes during its history. For example, in 1857, the Supreme Court declared that all blacks—slaves as well as free—were not and could never become citizens of the United States. The Court also ruled Congress did not have the authority to prohibit slavery.
These clearly mistaken rulings by the Supreme Court were later corrected. The Constitution does and should take priority over the Court’s prior rulings. If the Court always followed its precedents, wrote Chief Justice John Roberts, “segregation would be legal, minimum-wage laws would be unconstitutional and the government could wiretap ordinary criminal suspects without first obtaining warrants.”
It is also true there are legitimate concerns about the influence of money in elections and in politics generally. I share these concerns. But I believe the Constitution means what it says, especially when the language is clear and unambiguous. In my simple way of thinking, if the Constitution says Congress shall make no laws abridging freedom of speech, it means Congress shall make no laws abridging freedom of speech.
There are procedures for amending the Constitution. Those who don’t like what the Constitution says should try to amend it. They should not simply ignore it.
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