This piece originally appeared in The Columbus Dispatch on May 6, 2019.
In 2007, a small, Washington, D.C.-based nonprofit group you’d probably never heard of produced a low-budget documentary titled, “Hillary: The Movie.” The organization — Citizens United — then sought to run public advertisements encouraging people to see the movie. The Federal Election Commission, however, would not allow it. Like most nonprofit organizations, Citizens United is a corporation, and federal law prohibited a corporation from spending any money on a broadcast ad even mentioning a presidential candidate for much of the election year. So advertising, or paying to distribute and broadcast “Hillary,” was out.
Should politicians have the power to ban a documentary movie about a major presidential candidate in an election year? Even a low-budget, biased one (as opposed to, say, a big-budget, biased one, such as Michael Moore’s 2004 anti-Bush documentary, “Fahrenheit 9/11”)? Or is banning films the antithesis of both the First Amendment and government by the people?
Citizens United ultimately reached the Supreme Court, where the solicitor general of the United States argued that, First Amendment be damned, the government could bar the distribution of political DVDs and on-demand movies, a pamphlet published by a union about an upcoming election, or the publication of a 500-page book that included even one sentence advocating the election or defeat of a candidate, if funded by a corporation. Not surprisingly, the Supreme Court said, “no, it can’t.” And that is the case known as “Citizens United.”
Citizens United was not about “corporate personhood” or the corruption of politicians. It was over a most basic issue: Can the government ban political speech based on the identity of the speaker, or the mechanism that the speaker uses to communicate to fellow citizens? It was, in the end, about who decides what voices and opinions you, as a citizen, get to hear.
Now some people are calling for a 28th Amendment to the Constitution that would overturn not only Citizens United, but several earlier Supreme Court decisions that have protected our right to political speech from government manipulation.
The last clause of the proposed 28th Amendment makes clear that this is about limiting speech, by specifically excluding “the press” from its operation. Why would “the press” need an exemption from the proposed amendment if it didn’t limit speech?
So, under this 28th Amendment, MSNBC, Fox News, Breitbart and the Guardian get to say whatever they want about candidates. But the groups you might belong to, support or just want to hear from — the Chamber of Commerce and the AFL-CIO; NARAL Pro-Choice and National Right to Life; anti-gun Everytown USA and the National Rifle Association; the Sierra Club, and the National Federation of Independent Business — would have no right to speak about candidates and issues except to the extent politicians allow.
Fortunately, our constitution — at least as it now stands — doesn’t only protect the rights of the press. All of us have the right to speak and to listen to whom and to what we wish to hear.
More than 60 years ago, the government claimed campaign finance laws barred political speech by a union. In that case, United States v. United Auto Workers, the liberal lion William O. Douglas wrote, “Under our Constitution, it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important — vitally important — that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.”
Under this proposed 28th Amendment, Congress, not the people, will have the final say on what views you are allowed to hear. So what do you trust? The proposed 28th Amendment or the First Amendment? Politicians or the people? That’s the call you’re asked to make.
