Monday, February 1, 2010

The Citizens United Controversy

When Obama took the unprecedented opportunity during his State of the Union address to demonize the Supreme Court’s recent decision in Citizens United vs. Federal Election Commission he called negative attention to a decision that restores First Amendment rights limited by the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold.

Citizens United, a non-profit corporation, released a documentary in 2008 entitled “Hillary: The Movie” that was critical of then-candidate Hillary Clinton. After releasing the movie in theaters, the corporation planned to release the documentary on cable “on demand” within 30 days of the primary elections. This was a potential conflict with election law. Corporations and Unions could not fund "issue ads" within a particular time period prior to an election or primary. Citizens United challenged this ban.

The Supreme Court ruled in favor of Citizens United striking down part of 2 U.S.C. 441(b). The Court found that it was unconstitutional to limit free speech simply because of the speaker’s corporate identity. This ruling applies equally to unions’ free speech rights.

The President’s comments during the State of the Union are intellectually dishonest. Citizens United struck down part of 2 U.S.C. 441(b) and did not deal with 2 U.S.C. 441(e) which bans election contributions by foreign nationals. The Court even notes that it need not address the government’s interest in preventing “foreign individuals and associations” from contributing to elections and cites Section 441(e). 558 U.S. 46-47 (2010)

Clearly, the government has a strong interest in preventing foreign influence over our elections, but by overreaching and limiting free speech for American citizens, McCain-Feingold flies in the face of the Constitution. The Citizens United decision does not open the floodgates to foreign influence. It removes an unconstitutional limit on free speech that violated the rights of Americans. As a former constitutional law professor, our President should know this.

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