As for the second straw man frequently used to criticize the Citizens United decision (the proposition that money is not speech) that too is demonstrably false. The Framers of our Constitution did not believe that the only way you or I could speak was to stand atop a soapbox in the public square and yell loud enough for those around us to hear.
In our modern times, and even in the time of the American Founding, to speak effectively to any significant number of people almost invariably involves the expenditure of money. That’s why candidates run TV ads, radio ads, Internet ads, and social media ads. That’s why book publishers spend money to publish books. That’s why the New York Times spends millions of dollars to pay reporters and run printing presses and purchase paper and ink to distribute its newspapers across New York City and across the world.
Imagine, for example, that the government passed a law saying no newspaper could spend any money to print newspapers. Or, if you wanted to target it, a law that says Fox News—or MSNBC, depending on your partisan affiliation—could not spend even a dollar to buy satellite time to broadcast their shows. Would anyone conceivably say, “Money is not speech, so that law is ok”?
Even in the days of the Framers, public speakers would routinely spend money to print pamphlets and other materials to circulate and communicate a message. Indeed, the Federalist Papers, the arguments of Alexander Hamilton, James Madison, and John Jay in support of the newly drafted but not yet ratified Constitution, were themselves drafted under the anonymous pseudonym “Publius,” published as newspaper editorials, and then printed and circulated across New York and what would become the thirteen original states of the United States of America. If the proposition that free speech does not protect the expenditure of money were correct and spending money were restricted, then the Federalist Papers could at best have been whispered person to person but would not have been effective in communicating much of anything.
Likewise, at the time of the American Founding, it was readily understood that political speech was the very core of the Constitution’s prohibition against Congress’s “abridging the freedom of speech.” Our Founding Fathers were deeply familiar with the great pamphleteer, Thomas Paine, and his seminal work Common Sense. Paine’s essay, which advocated for America’s independence from the British Crown, was tremendously influential at the time. It was widely distributed—printed, at considerable expense—and read aloud at pubs, taverns, town squares, and civic gatherings. It helped to usher in the American Revolution itself. And it was the quintessential example, the very paradigm, of political speech.
When it comes to mischaracterizing the decision in Citizens United, one of the most egregious examples was at the 2010 State of the Union Address, when President Barack Obama described the Citizens United decision, decided the week before the speech, as “revers[ing] a century of case law” and “open[ing] up the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” The characterization was so demonstrably false, and laughably so, that Justice Samuel Alito, typically a quiet and reserved judge, could not resist mouthing the words, “not true.” The following year, in response, Justices Alito, Scalia, and Thomas all decided to skip the State of the Union Address.
Citizens United has become a bogeyman of the left. Barack Obama vowed to repeal Citizens United. Hillary Clinton vowed to repeal Citizens United. Bernie Sanders vowed to repeal Citizens United. And Joe Biden has vowed to repeal Citizens United—or, more precisely, to appoint justices who will do it for him.
On the question of free speech, today’s Democratic Party has become truly radicalized. On June 18, 2013, fifteen Senate Democrats first introduced a constitutional amendment that purported to overrule Citizens United. In fact, it would have gone much further, repealing the free speech protections of the First Amendment altogether. The first version of the proposed constitutional amendment gave Congress plenary authority—a legal term meaning blanket, or total, authority—to regulate any expenditure of funds by any American to influence an election.
At the time, Illinois Senator Dick Durbin was the chairman of the Senate Judiciary Committee’s Subcommittee on the Constitution, and I was the ranking Republican member on the Constitution Subcommittee (today, with a Republican majority, I am the chairman of the Constitution Subcommittee). Senator Durbin sought to pass this constitutional amendment, and I led the argument against it. This first version of the constitutional amendment was written so broadly that—literally—if a little old lady were to go to Home Depot and spend five dollars to buy a poster board and construct a yard sign on which she handwrote the words “Vote for Donald Trump” or “Vote for Joe Biden,” then Congress would have had the authority to make that simple action a criminal offense punishable by jail time.
Under the Democrats’ proposed constitutional amendment, Congress would be able to prohibit the NRA from distributing voter guides to let citizens know politicians’ voting records on the Second Amendment. Under the Democrats’ proposed constitutional amendment, Congress would be able to prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies. Under the Democrats’ proposed constitutional amendment, Congress would be able to penalize pro-life and pro-choice groups alike for spending money to advocate for their views on abortion. Under the Democrats’ proposed constitutional amendment, Congress would be
