Clobbering Free Speech With The Constitution – OpEd
By Bruce Edward Walker*
Former Wyoming Republican Sen. Alan Simpson announced his support this week for a 28th Amendment to the U.S. Constitution that would overturn Citizens United. According to Simpson, the version of the 28th Amendment he backs would set “reasonable limits on election spending, reform pay-to-play politics, and secure human liberty and equal representation rather than turn our government over to a global corporate marketplace.”
It was in 2010 that the U.S. Supreme Court’s decided Citizens United by a 5-4 vote. The decision overturned most campaign finance provisions of the bipartisan McCain-Feingold Act. Kimberley Strassel, in her 2016 book The Intimidation Game: How the Left is Silencing Free Speech, depicts Sen. John McCain’s co-sponsorship of the bill as the Arizona Republican’s public penance for his political embarrassment as one of five senators snared in the Savings and Loan corruption imbroglio. As one of the “Keating Five,” McCain was accused of improper intervention on behalf of Charles H. Keating, Jr., chairman of the Lincoln Savings and Loan Association in 1987.
Rather than admit personal responsibility for his ethical misstep, surmises Strassel, McCain blamed a system he attempted to remedy with unwieldy campaign finance regulations. President George W. Bush, a Republican, signed the bill into law. From the moment McCain-Feingold was passed in 2002, it was attacked as un-Constitutional. The deathblow was Citizens United, which was a watershed for free speech even though it neglected to defang McCain-Feingold donor disclosure requirements.
Historically, Democrats wanted campaign spending limits while Republicans championed donor transparency, with both parties occasionally flip-flopping on the issues.
On both the spending limits question, and transparency, we have a ways to go. Hillary Clinton and her supporters spent a record $1.2 billion on her losing presidential campaign — twice as much as the winner, Donald Trump, according to news reports. So, Sen. Simpson is on to something. But do we need to suppress free political speech under the guise of protecting the populace from corporate money and bad policies? And with a constitutional amendment?
Obviously, Republicans and Democrats equally deserve a share of the blame.
But it’s too true that the political left have been the chief offenders since 2010 as evidenced by such progressive activist groups as As You Sow and the Interfaith Center on Corporate Responsibility. Each year, these nominally religious organizations file shareholder resolutions seeking public reporting and disclosure of corporate donations and lobbying expenditures. What this has to do with religious faith is anyone’s guess, but it seems quite telling that many of these resolutions are co-sponsored by public-sector unions.
Post-Citizens United, the left doubled down on free-speech efforts in a manner that makes even the most outrageous claims about McCarthyism seem banal by comparison. In her book, Strassel hopscotches through these efforts adroitly beginning with the targeting of Tea Party groups by the Internal Revenue Service team led by Lois Lerner.
Okay, let’s assume certain readers concur with the overall vilification of the Tea Party as a bunch of “hobbits” – as Sen. McCain labeled them – who enjoy playing dress-up in Revolutionary War costumes, and the same certain readers further believe the IRS was justified in slow-walking tax-exempt status for groups opposing the Obama administration agenda. Fair enough. But what if the shoe was on a different foot and, furthermore, that foot stepped in a direction that readers can agree was a historic advancement for all Americans?
For example, as Strassel deftly relates, the NAACP refusal to turn over membership and donor lists during the 1956 bus boycotts in Montgomery, Alabama. Imagine what might’ve happened had the NAACP rolled over when Alabama Attorney General John M. Patterson and segregationist Judge Walter B. Jones issued an injunction against the organization. As Strassel notes:
Patterson wanted to do more than just put a halt to NAACP activities. He wanted to expose the group, target it, send the message that any black who continued to support it – openly or otherwise – was at risk. So he also filed a request that the court require the NAACP to hand over all its records – including a list of its members, its donors, its property ownership, and its bank statements….
[NAACP General Counsel Robert L. Carter] knew an NAACP member and donor list would be, in the hands of segregationists, at best a blacklist, at worst a kill list. His organization could not and would not ever comply.
Fast forward 60 years to 2016, and witness the same tactics attempted against the Acton Institute, the American Legislative Exchange Council, the Competitive Enterprise Institute, The Heartland Institute and a myriad of other free-market think tanks named in a subpoena from state attorneys general seeking ExxonMobil donation information, correspondence, funding and work related to challenging claims for catastrophic climate change from the past 20 years. Clearly, this was an attempt to force these groups into silence through intimidation.
When it’s too late to intimidate, it’s never too late to retaliate. Mozilla CEO Brendan Eich resigned after it was discovered he donated $1,000 of his own money to a California ballot initiative banning same-sex marriages. Other resignations included Scott Eckern, artistic director of Sacramentos’s California Musical Theatre ($1,000) and Richard Raddon, director of the Los Angeles Film Festival ($1,500). Margie Christoffersen ($100) witnessed the boycott and trashing of the restaurant that she managed and her mother owned. As Supreme Court Associate Justice Clarence Thomas warned in 2010:
I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the primary object of First Amendment protection.”
Just last week, amicus briefs were filed with the U.S. Supreme Court related to Independence Institute vs. FEC. At issue is the Federal Election Commission’s demand for the Colorado-based Independence Institute’s donor information after the think tank ran an advertisement urging readers to contact their legislators in support of a sentencing reform bill.
Donors possess any number of reasons for desiring anonymity for their political activities, including freely yet privately expressing their respective religious beliefs in the public sphere without any threat of retaliation. Strassel’s Intimidation Game is perhaps the best casebook explaining why demanding donor transparency is far worse than McCarthyism.
For all the deserved and undeserved derision heaped upon Cold Warrior Sen. Joseph McCarthy for his tactics in the 1950s, the political landscape has been chock-a-block with the same tactics ever since, especially when it comes to spending on political campaigns.
About the author:
*Bruce Edward Walker, a Michigan-based writer, writes frequently on the arts and other topics for the Acton Institute.
Source:
This article was published by the Acton Institute
