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CBS Overstates Citizens United Impact on Law

Covering the White House’s factually unsubstantiated claims that the Chamber of Commerce is using foreign money to pay for television advertisements, CBS News Stephanie Condon reported October 8th:

The president was referring to the outside interest groups that have flooded the 2010 election cycle with cash, in many cases without publicly disclosing their donors. Much of the activity can be tied to the Citizens United Supreme Court decision that significantly freed up corporate spending.

This is just plain false. There is nothing about spending by third parties this year that is in anyway tied to the Citizens United decision. Perhaps Condon is forgetting about the Swift Boat Veterans for Truth ads in 2004. Or the 2007 FEC v. Wisconsin Right to Life decision which struck down much of McCain-Feingold’s ban on “electioneering communications.” The truth is Citizens United changed very little about campaign finance law. As former chairman of the Federal Election Commission Trevor Potter told The New York Times:

The difference between the law pre- and post-Citizens United is subtle to the expert observer. To the casual observer, what they have heard is the court has gone from a world that prohibited corporate political speech and activity, even though that isn’t actually the case, to suddenly for the first time that it’s allowed.

All Citizens United did was overturn parts of the 1990 Austin v. Michigan Chamber of Commerce and 2003 McConnell v. FEC decisions the restricted the First Amendment. Specifically, The Heritage Foundaiton’s Hans von Spakovsky explains, Citizens United held that:

the First Amendment stands against attempts to distinguish among different speakers, which may be a means to control content. In so doing, the Court declared that the government cannot impose restrictions on certain disfavored speakers such as corporations.

The Court also found that free speech rights under the First Amendment do not depend on a speaker’s financial ability to engage in public discussion – the fact that some speakers may have more wealth than others does not diminish their First Amendment rights.