Wyoming Liberty Group

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Will the Real Citizens United Please Step Forward?

January 21st is a special anniversary for the Wyoming Liberty Group. It marks the fifth anniversary of the Supreme Court’s Citizens United opinion. The Wyoming Liberty Group played a unique role as friends of the court in that case, helping the Court adopt a much stronger opinion than expected.

Since the Court issued its opinion in Citizens United, it remains one of its most controversial rulings. Even five years later, reform groups clamor to, amazingly, amend the First Amendment, enhance disclosure of political spending, and otherwise “correct” Citizens United. Even moderate Republicans are getting chummy with pre-Citizen United ideas of regulating any speech that moves. This all happens, in large part, because of a deeply rooted confusion about what Citizens United means.

Citizens United was first about whether the federal government could ban an obscure pay-per-view film on cable (“Hillary the Movie”). Congress made “electioneering communications,” through McCain-Feingold, illegal for corporations and unions to produce. That’s a direct ban—unless you’re certain members of the FEC who, at the time, believed it was a reasonable “regulation” of speech.

This is the same case when, during oral argument, the Court asked the Deputy Solicitor General whether the federal government could ban books. Without flinching, the government affirmed it had the power to ban books that ran afoul of its rules. This is the real Citizens United.

This week, several reform groups took to Reddit to host a discussion on “We’re working on Overturning the Citizens United Opinion – Ask Us Anything!” It included representatives from Public Citizen, Move to Amend, Free Speech for People, and the Center for Media and Democracy. The highest ranked question in the discussion asked a terrific question, “Doesn’t the proposed amendment to the constitution that you propose to overturn Citizen United go way beyond just overturning Citizen United? As I read it, it would give virtually unlimited power to the government to regulate speech.” Another commenter explained, “that’s the problem with every attempt to overturn CU I’ve ever seen. I’m [sic] yet to see a proposal that would both work and not allow rampant censorship. Most fail on both counts.”

While I’m often pessimistic about how people understand Citizens United and what the real impulse is behind “reform,” I am encouraged by this Reddit discussion. The “We the People Amendment,” for example, would give government the power to determine which individuals have too much “influence” and could limit their speech rights based on that standard. The “Democracy for All Amendment” allows government to set “reasonable limits” for spending designated for political purposes. Fourteen years after law school I still don’t know what “reasonable” means. And you shouldn’t trust any bureaucrat to decide that term for you.

A lot of bad information about Citizens United remains popular folklore five years after its release. Most of this is due to misinformation campaigns waged by the professional “reform” lobby in Washington. These groups still believe they’ve created the best model to decide how much you should spend on political speech and when you should speak. But as the recent Reddit discussion shows, people are seeing through this façade for what it is—tired efforts to resurrect political censorship. In its place, a deeper truth is emerging, namely that Citizens United should be celebrated as a principled opinion that protects everyone’s political freedom.

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Saturday, 23 September 2017
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