Shawn Mitchell
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The Left’s assault on the Supreme Court’s Citizens United decision got high exposure at the 2011 State of the Union when the president famously insulted his robed hostages. The fallout continues, notably in Colorado.
 
Several measures have been proposed here, dedicated to the proposition the First Amendment and Supreme Court protect too much speech; government should tighten the muzzle. An initiative headed for November’s ballot instructs Colorado Senators and Representatives to support a Constitutional Amendment, allowing government freer rein to restrict political speech. But the logic reaches much further. Backers seem clueless about the knife they’re holding to liberty’s throat.
 
The sustained campaign against Citizens United illustrates a kind of Rahm Goldwater liberalism: Never let a frenzy go to waste; moderation in understanding facts is no virtue; extremism in government solutions is no vice.  Seldom has a decision been so distorted to serve preexisting narratives: Corporations are bad; government is good; campaign finance restrictions are wholesome. Nonsense all.
 


A little background helps reveal the fallacies. In 2008, a group wanted to produce a movie critical of Hillary Clinton. Like many collective enterprises, they organized into a nonprofit corporation, Citizens United. Here, the moviemakers crashed into the American Bastille of campaign finance: McCain-Feingold. Quintessential political speech about a major political figure? Dicey! Needs careful regulation and channeling! And corporations can’t do it at all. Zippo.
 
Our persistent political Spielbergs fought up to the Supreme Court, who 5-4, breathed life into the First Amendment. Organizations, like individuals, have a right to their own political speech. (The ruling didn’t address shackles currently on commercial speech; that captive still languishes, pending some future Supreme prison break.)
 
Liberal rage was instant: The Court said corporations are people! Money will drown citizen debate! The court tossed a century of precedent!
 
Most of what the media said about Citizens United was wrong or distorted: what the court actually ruled; its practical consequences; and its philosophical underpinnings. Paraphrasing a famous put-down: it was all false, including “and” and “the.”
 
The case didn’t overturn a century of law. Corporations still can’t give to candidates. It overturned a 5-4 decision from 1990 upholding restrictions on corporations making their own speech.  
 
The decision doesn’t favor business; it applies to all corporate forms, including nonprofits and labor unions. Nonprofits include diverse issue groups: Sierra Club, National Rifle Association, National Education Association, etc. The court’s ruling unchained all such organizations.
 
Sharper pundits observe the case may actually favor labor, which historically is more a more aggressive campaigner than corporations, for obvious reasons. Companies generally want to expand marketshare, not drive away big chunks with controversial politics.  The case hasn’t unleashed a flood of new spending and likely won’t.
 
A Colorado senate resolution this year condemned Citizens United, asserting that speech rights belong to individuals, not groups. This foolishly overlooks possible extreme consequences for all rights, including speech. If rights belong only to individuals, not organizations, then police may ignore the 4th Amendment to raid companies without a warrant. They can seize corporate property without due process, or take property for public use without compensation. The “corporations aren’t people” mantra invites all that.
 
The reasoning actually threatens all media speech, as well.  TV networks and newspapers aren’t individuals but corporations; nothing would stop Congress from restricting their speech.  
 
Far fetched? Maybe, but a lot is tolerated today that was once unthinkable or loudly opposed. Government’s tentacles continue growing. Colorado’s progressives, like their national brethren, aren’t reluctant to limit political speech. Last summer, a community group was cited for not organizing and filing state reports after spending more than $200 to print and distribute fliers against a local initiative. Cited for leafleting!  In the tradition of the Founding Fathers! They argued that complying with complex reporting rules would force them to hire an attorney. Colorado’s senate leader, who testified against them, was unmoved, saying that’s just the price of transparency. Neighbors who want to participate might have to lawyer up.
 
It’s easy to foresee policy going further that direction. Progressives want government to monitor and calibrate speech. Stanford law professor Kathleen Sullivan, mentioned as a possible progressive Court nominee, described Citizens United revealingly. While actually dismissing the more fevered criticism, she acknowledged there are two competing models for interpreting the First Amendment. The court chose the “libertarian” view, hostile to government restrictions, over the “egalitarian” view that seeks to “redistribute” and “balance” speaking power.

It’s heartwarming that liberal academics can strain and find a way to acknowledge the First Amendment might somehow condemn government restrictions on speech. It’s chilling that a lot of them, four Supreme Court justices included, would rather read it to endorse speech “redistribution” in order to balance “power.”
 
But it thrills a lot of liberals in Colorado and elsewhere.
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Shawn Mitchell

Shawn Mitchell was elected to Senate District 23 in the Colorado General Assembly in November of 2004. Shawn is an attorney at private practice in Denver and Adams County.
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