Corruption, or its boundless appearance, is very much on the mind of folks at Democracy 21. So much so that it has issued its own seven-part mini-series on the impact of Citizens United and its manifold fears about corruption. While it is proper to focus on corruption, and its boundless appearance, we should be equally concerned about free speech, and its shrinking appearance.
Let’s bring some sense to the most convenient term employed by the regulating class, “corruption” — or its boundless appearance — as justification for shutting down speech. From the birth of the reform lobby, this nebulous concept has served as a lodestone for limiting key constitutional freedoms. While no one is in favor of corruption, the odd mutation of the term now captures activities like petitioning, criticizing public office holders, and otherwise being vocal. Besides King George III, few would classify criticism as inherently corrupting.
Thankfully, Fred Wertheimer has entered the fray to bring clarity and definition to this oft-misunderstood term. “‘There has been some misunderstanding about what the Supreme Court means when it uses the term corruption in cases involving the constitutionality of campaign finance laws,’ according to Democracy 21 President Fred Wertheimer.” Hold on to your hats, folks. As it turns out, Fred reminds us, any speech by independent citizens critical of public officeholders or the government is potentially corrosive and ultimately corrupting.
To derail any fundamental freedom requires the presence of a boogeyman, or at least a forced showing of its appearance. With fear and loathing comes stripping of constitutional rights through careful orchestration. It should come as little surprise then, that in the campaign reform context, the reform lobby has had no shortage of work for itself eking out new boogeymen of the day as compelling reasons to shutdown the spigot of free speech. What Fred ignores is the compelling antidote to finding corruption, or its boundless appearance, around every corner: The right of a free people to criticize their government, speak out, and be vociferous, even when caustic or misguided.
Fred gets a bit sidetracked in his discussion of corruption, or its boundless appearance, by noting that cabining corruption to a restrictive, legal definition “would render the ‘corruption’ standard meaningless as a practical matter in campaign finance cases, and would dramatically increase the opportunities for the corruption of our democracy.” Well, Fred, thanks to the efforts of Democracy 21 and others, the term “corruption,” is quite nebulous enough, serving to engulf whatever free speech is left under the protection of the First Amendment.
After all, this is why Citizens United is so important, and why Fred is so very worried. With the supplemental hearing and briefing in Citizens United, the Court finally agreed to examine just what corruption means. Can it be true that wealthy people speaking is “corruption”? Austin v. Michigan Chamber of Commerce says as much. Is it also true that the more effective your speech, the more reason government has for eliminating it? Austin would also answer in the affirmative. Could corruption also encompass speech by independent citizens that fails to meet the never-defined-but-always-enforced two-prong, eleven factor speech labyrinth of the FEC? McConnell v. FEC would say yes.
Let’s consider some more stubborn facts about corruption and its boundless appearance:
Exhibit A — in McConnell v. FEC, the Supreme Court finds a new class of speech, the “functional equivalent of express advocacy,” as corrupting. Its basis? The Court examined the venerable findings of college students who reviewed political advertisements to determine whether they were “sham” or “genuine.” Entrusting the constitutional distinction between “genuine” and “sham” speech with 18- to 21-year-olds, the Court opened the door for the persecution of disfavored political speech. The Court would then, for the first time, draw fuzzy lines between issue advocacy, express advocacy, and the functional equivalent of express advocacy. At the end of the day, it is only the Federal Election Commission who knows whether speech is pure or corrupt, leaving citizens in the dark.
Exhibit B — Examine the first Wisconsin Right to Life challenge. The “corrupting” speech there involved advertisements aimed at Senators Kohl and Feingold to end the filibuster of President Bush’s judicial appointees; except that the speech could not go forward because it would have been aired during a blackout period of the BCRA. Here we see that Wisconsin citizens pooling their resources together to call upon senators to change public policy became tantamount to vice and, you guessed it, “corrupting.”
Exhibit C — Ponder the Independence Institute challenge presently before the Supreme Court. There, donors to a think tank speaking out about fiscal reform in the state found their privacy threatened because of their “corrupting” ideas. Citizens giving as little as $20 could find their identities posted on the Internet and their privacy swept away with little concern. While most would support citizens becoming involved in such issues, the roving reform lobby would somehow classify these efforts as “corrupting” and subject to state harassment.
While the reform lobby tosses about high-minded notions of preventing corruption and its appearance, free speaking citizens are left with the burden of their failed experiments. And while no one at the Center for Competitive Politics is in favor of actual corruption, the fabricated “corruption” the reform lobby tosses about usually amounts to normal people pooling money together to speak out and criticize public candidates, the government, or issues of the day. This is not an act of corruption; this is the lifeblood of a free society.
But is it really true that the Supreme Court has traditionally given wide berth to the term “corruption,” as Fred suggests or was the Court’s holding in McConnell an aberration? Post-McConnell, “corruption” is a term more often defined by what it is not, than by what it is. And Fred and professional reformers are quick to pick up on this fact. Future posts on CCP’s blog will help give better meaning to the limited nature of this term and explain why the Court’s welcome adoption of its supplemental briefing and hearing in Citizens United will cure the errors in McConnell and return the Court to a jurisprudence favoring speakers, not the reform lobby.