Like MENSA, Only Thicker

True Patriots

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“For true patriots to be silent, is dangerous.” ~ Samuel Adams, 1766

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From the editorial Pages of the Wall Street Journal January 22,  2010:

Newsflash: First Amendment Upheld
An end to giving political speech less protection than pornography.


Thursday’s Supreme Court ruling in Citizens United v. Federal Election Commission, in which the Court struck down a blanket government prohibition on corporate political speech, is a wonderful decision that restores political speech to the primacy it was intended to have under the First Amendment.

To truly appreciate the stakes in Citizens United, one must remember the government’s legal position in the case. Implicit in its briefs but laid bare at oral argument, the government maintained that the Constitution allows the government to ban distribution of books over Amazon’s Kindle; to prohibit a union from hiring a writer to author a book titled, “Why Working Americans Should Support the Obama Agenda”; and to prohibit Simon & Schuster from publishing, or Barnes & Noble from selling, a book containing even one line of advocacy for or against a candidate for public office. As David Barry would say, “I am not making this up.”

The Court said “no,” and the only shocking thing about the decision is that the four liberal justices said “yes.”

Hopefully, this ruling marks an end to 20 years of jurisprudence in which the Court has provided less protection to core political speech than it has to Internet pornography, the transmission of stolen information, flag burning, commercial advertising, topless dancing, and burning a cross outside an African-American church.

Unfortunately, some in Congress are using this decision to push for a government takeover of political campaigns through the misnamed “Fair Elections Now Act,” which has over 100 sponsors (all but three of them Democrats) in the House. This legislation would use tax dollars to fund congressional campaigns.

This “solution” to the alleged problem of moneyed interests dominating our politics, apart from other objections, is simply irrelevant to the issue at hand. Corporations will still be able to make independent expenditures, regardless of how the candidates fund their campaigns. Still others professing outrage at Citizens United, such as Rep. Barney Frank (D., Mass.), talk of using securities regulation to hamstring corporations that dare to speak. Mr. Frank is pledging to hold hearings.

It is true that the Supreme Court’s ruling will lead to more corporate (and union) political speech. But even if one thinks that is a bad thing, there is little empirical reason to believe the horror stories of corporate dominance of the democratic process.

Already, 28 states representing 60% of the nation’s population allow corporate independent expenditures in state races. These states, including Virginia, Utah and Oregon, are hardly mismanaged. Rather, they are disproportionately among the fastest growing, best governed states in the country.

The dissenting justices in Citizens United see corporations as organizations in which people are trapped. They bemoan the allegedly lost rights of shareholders who may not personally support the candidates a corporation might choose to support. The justices who joined Anthony Kennedy’s majority opinion, on the other hand, regard this as no different than any other question of corporate governance.

Corporations frequently take action that some shareholders do not like, including, for example, making charitable contributions. Stockholders are free to leave the corporation if their disagreements become too strong. Meanwhile, why should the majority be prohibited from voicing their views as a corporate enterprise?

Much of the opposition to Citizens United is simply the opposition of the political left to what they perceive corporations will say. Consider campaign finance “reform” organizations that have long been supported by corporations. New York University’s Brennan Center for Justice has received support, for example, from a rogue’s gallery of corporate America, including Enron and Bear Stearns. Never has the public heard a peep from this organization about whether all shareholders in these corporations actually support the center’s agenda.

Or, for that matter, consider John McCain’s Reform Institute, founded to promote campaign finance reform after his 2000 presidential run. It has received funding from AIG. Did all AIG’s shareholders approve?

Similarly, much of the criticism focuses on the perception that Republicans will be the winners if corporations and unions are unshackled. President Barack Obama, Democratic Congressional Campaign Committee Chairman Chris Van Hollen and Democratic Senatorial Campaign Committee Chairman Bob Menendez all announced that they would be looking for ways to limit corporate expenditures.

But the First Amendment is all about distrusting government to make those decisions about who has spoken too much. That’s why Thursday’s decision is such a breath of fresh air.

The next time you download a book on Kindle, buy a Michael Moore screed at Barnes & Noble, or order up a political movie from video on demand, remember that it is the Supreme Court’s decision in Citizens United that guarantees you the right to do so.

Mr. Smith is professor of law at Capital University Law School and chairman of the Center for Competitive Politics. He served as a commissioner of the Federal Election Commission from 2000-2005.




The dENSA site selection committee returned a rather cryptic recommendation for next Wednesday’s meeting:

A Chinese Restaurant near or next to K-mart on Division Street.  No name or address provided, but apparently use of the rear entrance is no longer required.


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