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:

As Institute for Justice campaign finance expert Paul Sherman explains in the video above:

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.

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Two years ago the United States Supreme Court decided the landmark case of Citizens United v. FEC.  The Court reversed an anomaly in campaign finance law by restoring the First Amendment protection of political speech.

Over the past two years Citizens United’s victory has been the subject of countless attacks. It has inspired some members of Congress to attempt to pass legislation to chill political speech, caused the President to chastise the Supreme Court during the State of the Union, and even led to irrational demands that we amend the Constitution to curtail the Freedom of Speech.

Despite the heated rhetoric, little in politics has changed.  Before Citizens United, candidates, independent groups and political parties ran political ads.  Shockingly, the same is true after Citizens United.  Some lament the amount of money spent on political speech, but as George Will has noted, Americans will spend more money on Easter candy than they spend electing a President.

The liberal drumbeat against the decision seems to be led by a group of leftist non-profit organizations.  These groups, with such good governance names as Democracy Unlimited, Democracy 21, Public Citizen, and Common Cause, are fighting to overturn the First Amendment.

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During the 2008 election campaign, then-Senator Barack Obama knocked fellow candidate John Edwards for benefiting from the same outside spending groups he criticized:

“So you can’t say yesterday you don’t believe in them, and today you have three quarters of a million dollars being spent on you. You can’t just talk the talk. The easiest thing in the world is to talk about change during election time.”

Priorities USA, a super PAC headed by Bill Burton – former Deputy Press Secretary at the Obama White House – launched a television ad campaign attacking Republicans today. A super PAC is a federal PAC that only makes independent expenditures in support or opposition of candidates. These super PACs were made possible because of the Citizens United and Speech Now cases.

President Obama made it a daily habit to bash the Citizens United v. FEC Supreme Court decision last year. From his weekly radio addresses to speeches on the stump, President Obama seemed obsessed with casting sinister aspersions on the decision. In one instance he ominously said, “But this summer, they’re also seeing a flood of attack ads run by shadowy groups with harmless-sounding names,” like Priorities USA perhaps!

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In Citizens United v. FEC the Supreme Court rejected the idea that the government may determine whose speech is worthy of protection under the First Amendment. As a result of the decision, individuals, small businesses, corporations, labor unions, and non-profit organizations may all engage in political speech. It is not the bailiwick of government bureaucrats to judge and determine who should be allowed to speak. As Chief Justice John Roberts has remarked: “We don’t put our First Amendment rights in the hands of FEC bureaucrats.” Citizens United appropriately limited the government’s ability to regulate and prohibit speech.

Another case that questions the ability of the government to regulate speech is currently before the Supreme Court: Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. This case deals with Arizona’s “clean elections” campaign financing system.

There have been many attempts to create systems where the government subsidizes campaigns. Most label these systems “public financing,” but in reality they are anything but. The truest form of “public financing” is a system in which citizens can voluntarily contribute to those candidates which they support. Each and every government subsidized system undermines the sovereignty of the American people.

The most recognizable of these systems is the presidential financing system, which allows individuals to make a voluntary contribution to help finance presidential campaigns when filing their annual tax return. Once a candidate agrees to participate in this financing system they must adhere to guidelines established by the federal government. As the flaws of this system have become more apparent, even liberal politicians like Barack Obama have opted out of the system. In seeking to trim waste from the federal budget, Republican Members of Congress have attempted to curtail this misguided program.

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Thursday, in his resounding defense of the First Amendment in the Citizens United decision, Justice Anthony Kennedy wrote for the majority:

…[w]hen Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

“Censorship” is a dirty word in America, and that is why the restrictions at issue in our case were cloaked in the guise of “campaign finance reform.”  But the fact remains that any restrictions on political speech, especially those that criminalize such speech, send us down a very slippery and very dangerous slope.

Last March, our government argued in court that it has the Constitutional authority to ban books that mention a candidate for federal office.  The government later retracted that statement, but is there any doubt that such a statement never would have been made if there had not been 100 years of progressively more intrusive restrictions on political speech preceding it?    Had the Court not acted, what was to prevent the government from asserting that authority over the internet, which does not have the benefit of two centuries of tradition and jurisprudence protecting it?

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Towards the end of the post on Wednesday in which I attempted an assessment of George W. Bush’s two terms as President, I took Bush to task for betraying his oath of office and signing McCain Feingold — a bill restricting freedom of speech that he rightly regarded as unconstitutional.

“It was,” I wrote,

President Bush’s hope and expectation that the Supreme Court would declare McCain-Feingold unconstitutional. Thanks to Citizens United v. Federal Election Commission, which is now before the Supreme Court, his hopes may — as Bradley A. Smith suggests in the current issue of National Affairs — soon be vindicated. But nothing can excuse Bush’s failure as President to do what he knew to be his constitutional duty and veto the bill.

What I did not know on Monday, when I drafted that post, was that the Supreme Court would issue its decision one day after the anniversary of Barack Obama’s inauguration. I merely argued as follows: (more…)