Op-Ed: I’m responsible for Citizens United. I’m not sorry.
In 2007, my organization produced a documentary called “Hillary: The Movie” and tried to put it on TV. The name of our nonprofit? Citizens United.
Our name, of course, has become synonymous with the landmark U.S. Supreme Court ruling that followed in 2010. And ever since it unfairly has become the boogeyman of liberal politicians, blamed for opening the floodgates to excesses of money in elections. Hillary Clinton and Bernie Sanders say opposing Citizens United should be a litmus test for the next Supreme Court justice, and both support a constitutional amendment to overturn it.
To me, however, the decision represented — then and now — a sweeping victory against government censorship of free speech, especially political speech.
Simply put, since the Citizens United decision there is more free speech in America -- and, importantly, no evidence that corporations have been able to buy an election.
People upset by the repercussions of Citizens United might blame me, or maybe Justice Anthony M. Kennedy, who wrote the majority opinion. But they should turn their gaze to filmmaker Michael Moore. In June 2004 — a presidential election year — he released “Fahrenheit 9/11.” That documentary — produced and promoted with corporate money — made a tremendous impact in the run-up to election day. TV was filled with ads for the film, which made President George W. Bush look ridiculous in the aftermath of the terrorist attacks of Sept. 11, 2001. That inspired me to produce conservative films.
But when I made “Hillary: The Movie” in 2008, the Federal Election Commission argued that, unlike Moore’s film, it was a form of “electioneering” and that I couldn’t show it during an election season— the very time that free speech matters most. Under the McCain-Feingold campaign finance laws, the government could actually have thrown me in jail for showing “Hillary: The Movie” or its promotional ads on television.
Our case focused narrowly on making “Hillary: The Movie” available as video-on-demand. But the justices rightly looked at the bigger picture.
If federal election laws could be used to prevent my nonprofit organization from advertising or distributing our movie, what was to prevent other forms of speech with corporate ties — books from publishing houses, DVDs from film studios — from being limited during an election cycle if they mentioned or favored a political candidate?
It’s worth remembering that during the first round of oral arguments, Deputy U.S. Solicitor General Malcolm Stewart asserted that McCain-Feingold’s limitations “could have been applied to additional media as well.” Under that kind of broad interpretation of the law, Michael Bay’s “13 Hours” about the debacle in Benghazi, Libya, or Johnny Depp’s “Funny or Die Presents Donald Trump’s The Art of the Deal: The Movie” also could have been challenged for violating corporate political spending during an election season.
Simply put, since the Citizens United decision there is more free speech in America — and, importantly, no evidence that corporations have been able to buy an election. In fact, the candidates with the biggest super-PAC war chests have often lost. Jeb Bush, who spent more than $100 million before dropping out of the Republican primary on Feb. 20, is just the most recent example.
I don’t mean to suggest that the Citizens United ruling has had no effect.
Prior to it, American political speech was stifled by excessive and burdensome rules aimed at protecting incumbents and the establishment class of both parties. As Justice Kennedy explained in his opinion, since the Federal Election Campaign Act was enacted in the 1970s, the Federal Election Commission had adopted 568 pages of regulations, drafted 1,278 pages of explanations and justifications for those regulations, and issued 1,771 advisory opinions interpreting the law. There were rules for 71 distinct types of entities, each of which was subject to separate rules for 33 different types of political speech.
This regulatory scheme was thwarting the ability of anti-establishment candidates to get their messages out. And our 2010 victory knocked a hole in it. It made it clear the 1st Amendment protects everyone’s speech during the process of choosing elected leaders — and that their voices couldn’t be stifled by spending caps or blackout periods.
Almost immediately, a shift began that has put the political establishment on its heels. Marco Rubio, Mike Lee and Rand Paul defeated GOP establishment candidates in Senate primaries in the 2010 election. Scores of tea party-backed candidates were elected to the House, returning that body to Republican control. Super-PAC spending in support of former Texas Solicitor General Ted Cruz helped him defeat a well-funded Washington-backed opponent on his way to the U.S. Senate.
While some critics of the Citizens United decision are driven by ideology, many just preferred the status quo. Most politicians surround themselves with high-priced election consultants and lawyers who are masters of Washington’s rule book — and they want to retain the advantage they’re paying for.
For Clinton, it’s not really about ideology, corporations or money; it’s about her. After her lopsided loss in New Hampshire, she tried to out-Bern Bernie Sanders, reasserting that (despite her own super PAC backing) she’s ready to reverse Citizens United. In her concession speech Clinton ranted, “Citizens United, one of the worst Supreme Court decisions in our country’s history, was actually a case about a right-wing attack on me and my campaign. A right-wing organization took aim at me and ended up damaging our entire democracy.”
Not surprisingly, I disagree. The right of anyone to criticize political leaders and political opponents is one of the founding principles of our democracy.
That said, I do believe we need common-sense campaign finance reform. We should raise the limits on direct contributions to candidates and traditional membership PACs — which would help make super PACs unnecessary and obsolete. Increasing the disclosure threshold for individual contributions from $200 to $1,000 also would reduce the burden of election regulations and promote more participation in politics.
In the final analysis, I will always believe that more speech is better than less speech.
David N. Bossie is the President of Citizens United, which was the plaintiff in the U.S. Supreme Court case Citizens United vs. Federal Election Commission.
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