In the News: Wall Street Journal: The War on Political Free Speech

The War on Political Free Speech

By Brad Smith

Two years ago the Supreme Court upheld the right of an incorporated nonprofit organization to distribute, air and advertise a turgid documentary about Hillary Clinton called, appropriately enough, “Hillary: The Movie.” From this seemingly innocuous and obvious First Amendment decision has sprung a campaign of disinformation and alarmism rarely seen in American politics.

From the start, reaction to Citizens United v. Federal Election Commission has bordered on the hysterical. Rep. Alan Grayson (D., Fla.) called it the “worst decision since Dred Scott”—the 1857 decision holding that slaves could never become citizens. In his State of the Union message, within days of the ruling, President Obama lectured Supreme Court justices in attendance that they had “reversed a century of law” to allow “foreign companies to spend without limit in our elections.” Neither statement was true.

In 1907, Congress passed a law—the Tillman Act, named for segregationist South Carolina Sen. “Pitchfork” Ben Tillman—prohibiting corporations from contributing to political campaigns. This law was extended to unions in 1943, and in 1947 a provision of the Taft-Hartley Act extended the prohibition to cover spending done independently of campaigns.

Citizens United overturned only the 1947 independent-spending restriction, not the earlier prohibition on corporate contributions to campaigns. Not until 1990 did the Supreme Court uphold a prohibition on corporate political expenditures independent of campaigns. Citizens United, therefore, overturned not “a century of law,” but a precedent 20 years old.