Citizens United v. Federal Election Commission

by Jorge Reyes

One of our most cherished constitutional rights is the first amendment's freedom of speech. With it also comes the free exercise of religion and the establishment clause.

These emblematic basic principles sets us apart from other countries, being unique in many ways. Together, they are a compodium of words, ideas and Enlightenment principles instilled in us from the day we are born. Whatever their real practicalities in our lives, unfortunately we often may take them so much for granted that we often don't realize how vulnerable those first basic rights are, and how they can be taken away from us, often in subtle ways.

Freedom of speech has not been a very popular thing to sell. I think it is one of the toughest things to sell. Historically, there have been times when this right of self-expression has been all but real, such as when it has been used as a tool of suppression or against sedition, or when it has been used against economic reform between the right of contract between corporations and employees.

Even the most freedom-lovers among us defend this right, except when it is not to their liking. After all, it takes a commandable spirit of magnanimity to defend hate groups, to give but one example.

Of late, I haven't seen more academic polemic over a Supreme Court decision than Citizens United v. Federal Election Commission, which was decided by a five-to-four vote. The Court's opinion overturned the McCain-Feingold Act (the Act) which forbade corporation or union television advertising that endorsed or opposed a particular candidate. In effect, the opinion said that corporations can spend unlimited funds on political advertising in any political election. At issue was a pay-per-view documentary critical about then Senator Hillary Clinton, totally financed by corporate money.

The Court's decision, written by Justice Anthony Kennedy, was joined by the conservative wing of the Court, Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. The dissenting opinion was written by Justice John Paul Stevens and joined by the other liberal justices.

Immediately everyone, whether from the Left or the Right, read this decision as flawed, onerous, and simplistic, and mostly for the same reasons. One side saw it as a Right-wing judicial activism favoring the already entrenched power of corporate money into the political arena. The other side saw it as a total disregard for democracy, treating corporations as individuals not as legal fictions, with the same freedoms of speech as you or I have.

Each side, of course, is both right and wrong. One cannot pick and choose what we like and still call it freedom of speech. On the other hand, democracy can become a mockery if one group can buy themselves into power while the rest of us remain on the sidelines as mere expectators.

I happen to be a strong defender of first amendment rights. As a writer, I feel that there should be no infringment on speech, of any type. Whatever reason may exist for suppressing speech is just that-- an excuse, whether it's the Left or the Right doing the suppression.

Years ago when I wrote a book about Cuba, I received a flood of hate mail from people who didn't understand why I had returned to Cuba. Some, taking pen and paper in hand, wrote missives against me in local newspapers. The bitterness was intense. I felt vulnerable. With nothing but my ideas, I spent almost a year in a public relations campaign trying to defend myself and educate people about my decision to travel to Cuba either on TV, radio, or the print media. It never crossed my mind to stop speech by suing my detractors in court for libel. (For the record, I say “sue them” because that's exactly what many prominent Cuban-Americans have often donein the past, shut their oponents up by suing them for libel. I'm thinking of the late Jorge Mas Canosa and his bitter, long-standing feud against the Miami Herald, and even Castro's sister, Juanita Castro, who sued her niece Alina Fernandez in a Spanish court of law after Alina wrote a book critical of her lineage.)

One can't believe in democracy, much less become fully engaged in our democratic experiment, if elections are decided by who has the most money, what group is most vocal, and who has access to the halls of power. That's a problem; a highly dangerous one when so many groups are marginalized or on the fringe of society without the right to vote, others are totally unrepresented, or yet others the apathetic ones don't feel that their vote counts for anything. You can call all these scenarious the sad pathology of our modern democracy, and it is a serious one. While on principle everyone is treated equal, is it true in practice?

That's what the McCain-Feingold Act tried to rectify and what the Supreme Court tipped the balance by saying “sorry, no can do.” The difference is more than one of degree. It is how each side interprets differently one paradigmatic principle.

The implication between the Act and the Court's decision is this: if democracy and the first amendment mean anything it is that democracy is flawed, not perfect, and that it will continue to be so and in need of help; and that the first amendment, instead of guaranteing equality of results, is only a method, a tool at our disposal and nothing more. Whether one group gets the upper hand or not is beyond its purview.

The idea of a populist right (the Act) and a democracy based on majority rule (emblematic of the Supreme Court decision) are often diverging and on opposite ends of the pole. It's an old tug-of- war as old as Athenian Democracy, one that continues in our modern age, and one whose results you may want to monitor yourself next time there is a national debate about a major issue, such as a Presidential election or healthcare reform.

Perhaps the best cure to rectify the democratic malaise of current times between moneyed interest and populism is by becoming more civic-minded and instead of bemoaning the sad state of democracy, becoming fully engaged in it.