By Bill Maurer
Congressman Jim McDermott's recent op-ed in The Seattle Times, Corporate spending and U.S. elections: counteracting the super PACs, gets almost everything wrong about Super PACs, the Supreme Court's decision in Citizens United v. FEC, and spending in elections. What he proposes in response would seriously undermine the First Amendment.
In his op-ed Representative McDermott does not discuss what Citizens United was about or what the justices actually said. Citizens United concerned a federal law that made it a crime for people to use general corporate and union treasury funds to produce political speech. If people used the wrong funds to fund a movie, book, pamphlet or advertisement, the government could fine or imprison them. The Supreme Court concluded that the First Amendment—"Congress shall make no law … abridging freedom of speech"—could not be reconciled with a law that made it a crime to produce political speech.
The Supreme Court was right. This is America. We do not put people in prison for making movies or publishing books about politics, regardless of whether government officials would prefer that it be illegal to use "unlimited funds to attack candidates for federal office." That approach is not fairness or democracy—it is censorship.
The op-ed nonetheless blames Citizens United for a "super PAC-driven media onslaught" that will try to persuade Washington voters who to choose as "a president, governor and full slate of other national and state officials."
As an initial matter, Citizens United did not concern Super PACs—that was a different decision, SpeechNow.org v. FEC. Regardless, Super PACs are simply associations of people acting together to exercise their First Amendment rights. While those in power may not like the speech they produce or think there is too much of it, the Constitution prohibits them from banning or even limiting it.
The op-ed also errs on the effect Citizens United will have on Washington state elections, which is none. Washington did not limit corporate or union spending on elections before Citizens United and the state has even long permitted corporations to give directly to candidates.
It also declares that Citizens United also "guaranteed corporations the same free-speech rights as people." But corporations are associations of people, like marriages, TV stations, labor unions, and rock groups. People do not lose their First Amendment Rights when they act in concert with others—if they did, the government could ban all speech that carries beyond the sound of a single person’s own voice.
Ultimately, Representative McDermott's real problem is with the fact that those with whom he disagrees can speak effectively and persuasively and not with Citizens United itself. His op-ed makes it clear that he believes there is something inherently wrong in Americans coming together, pooling their resources, and producing political speech "designed to sway our elections." This is why, for instance, he proposes increased disclosure for political spending, which would allow officeholders to more easily identify and retaliate against those who speak out against them.
Those in power often do not like political speech, especially when it is directed at them. But Representative McDermott's desire to ration speech leads him to propose a constitutional amendment to limit the scope of the First Amendment. This proposal should alarm every American.
The First Amendment has protected free speech and association for over 200 years. Americans of all political stripes should be very concerned when government officials want to amend it to make it more difficult to effectively discuss who should represent us. We should not dispense with our fundamental freedoms so that politicians can remain in office untouched from criticism or challenge.
Seattle attorney Bill Maurer is a Washington Policy Center adjunct scholar and director of the Institute for Justice's Washington Chapter.