- - Tuesday, July 10, 2012


It has become conventional media wisdom that the recent Supreme Court ruling on Obamacare was necessary to protect the court from yet another politicized, partisan 5-4 decision on top of George W. Bush v. Al Gore and Citizens United. Yet that characterization of those two decisions is a media misconstruction that must be corrected, as should the growing consensus that the insurance mandate is a “tax” only for constitutional analysis but otherwise a penalty for all legislative and political purposes.

Of course, media misconstructions of Supreme Court decisions is nothing new. Ask any stranger about Bush v. Gore, and he probably will tell you that the court ruled in Mr. Bush’s favor strictly by a 5-4 vote, strictly along party lines. In fact, the court voted 7-2 on the constitutional issue - that Florida violated the 14th Amendment’s Equal Protection Clause by ordering standardless recounts in selected counties. The court’s narrower 5-4 vote pertained to the limited question of remedy - namely, whether the U.S. Supreme Court could order a new recount to begin even after the federal statutory deadline for recounts.

Even more destructively, in an election year, the media similarly mischaracterizes Citizens United v. Federal Election Commission, which recognized corporations’ and unions’ First Amendment right to spend money on speech during an election as long as those expenditures are independent of the candidates’ and parties’ own efforts. The media has repeatedly - and incorrectly - suggested that Citizens United opened the doors to unlimited independent spending by individuals and groups, especially in Republicans’ favor.

Several months ago, for example, the New York Times reported that Citizens United “has made it possible for a wealthy individual to influence an election,” citing the example of Sheldon Adelson, who supported GOP hopeful Newt Gingrich by spending millions of dollars through an independent super PAC.(Mr. Adelson’s influence was obviously overstated). The Times reiterated its narrative yet again last week, reporting that Citizens United “made such entities” - that is, super PACs - “possible.”

And the Times is not alone. As a Huffington Post contributor remarked in January, Citizens United is seen as the “root of all evil by editorial writers across [the] country.” The blogger wasn’t exaggerating, as demonstrated by the myriad quotes that he featured in his post.

The press has it wrong. The First Amendment has always protected our right to spend independently on election-related speech. When Congress tried to limit “independent expenditures” in 1971, for example, the court struck down those limits as unconstitutional in James L. Buckley v. Francis R. Valeo. Distinguishing independent expenditures from actual contributions to campaigns, the court - led by liberal lions William Brennan and Thurgood Marshall - explained that “[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation,” because “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

This is the doctrine that has permitted individuals’ large expenditures and donations to super PACs. Citizens United had nothing to do with it, as that decision focused only on the rights of corporations and unions. Indeed the court in Citizens United noted that individuals’ right to “spend unlimited amounts on independent expenditures” already had been well established.

One last mischaracterization requires correction. Citizens United’s recognition of corporations’ free speech rights has not led to a rush of corporate spending in favor of Republicans. If anything, Democrats have been the case’s biggest beneficiaries.

As the Boston Globe reported last week, the largest contributions to GOP super PACs are almost all individuals, not corporations. Three of the five biggest contributors to Democrat super PACs, by contrast, are unions: the National Education Association, the AFL-CIO and Service Employees International Union. The unions, and the PACs and candidates they support, can thank Citizens United and the Supreme Court for protecting their First Amendment rights.

C. Boyden Gray served as White House Counsel in the administration of President George H.W. Bush.

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