On its Editorial Page Editor’s Blog, The New York Times complains, “Long before he became the Republican leader, Senator Mitch McConnell had built a career out of opposing limits to political fundraising and spending, supposedly in the name of free speech. . . . But Mr. McConnell has outdone himself with a legal brief submitted to the Supreme Court a few days ago that’s blind to the ways in which unlimited contributions damage the political system. Not only is there no reason for the court to reconsider or overturn its 2010 Citizens United ruling, he wrote, but the events of the last two years actually support the correctness of the decision. . . . He submitted the brief as part of a Montana case that the Supreme Court may add to its calendar. Since 1912, Montana has barred corporate expenditures in political campaigns. The state’s highest court decided that Citizens United did not supersede the ban . . . . In his brief, urging the court to strike down the Montana law, he says the money has allowed ‘far more political speech in 2012 than would otherwise have been the case,’ making the campaign less predictable and more interesting.”
The editors at The New York Times apparently cannot conceive of a reason that anyone would defend the Supreme Court’s landmark 2010 decision in Citizens United, which ruled a number of restrictions on political speech championed by liberals, like those at the NYT editorial board, as violations of the First Amendment. President Obama even inaccurately attacked the Court for this ruling during his 2010 State of the Union address as several justices sat in front of him. Yet Leader McConnell has always maintained that “Our democracy depends upon free speech, not just for some but for all,” as he said in 2010.
Like he did in Citizens United, Leader McConnell worked with renowned First Amendment attorney Floyd Abrams to file an amicus brief with the Supreme Court in this Montana case. This new brief points out that “Senator McConnell was the lead plaintiff in McConnell v. Federal Election Commission, litigation challenging . . . the constitutionality of Section 203 of the Bipartisan Campaign Reform Act of 2002. Senator McConnell filed a brief, amicus curiae, in Citizens United v. Federal Election Commission and his counsel participated in oral argument on his behalf in that case. For many years, Senator McConnell has been a leader in the United States Senate in opposing Congressional efforts to restrict speech about elections in the name of campaign finance reform.”
In the brief in this Montana case, Abrams and McConnell state, “The ruling of the Montana Supreme Court is in direct contravention of this Court’s ruling in Citizens United. Nothing that has occurred since that ruling warrants its reconsideration. In fact, the central concerns expressed by those members of this Court who dissented in Citizens United or joined earlier opinions sustaining campaign finance laws that limited speech have not been borne out by events of the past two years. . . . The Citizens United ruling was rooted in long established First Amendment principles. There is no basis for reconsidering them or the Citizens United ruling itself.”
The brief argues, “Over two years have passed since the Citizens United ruling. One national election has been held and a vigorously fought primary campaign has been waged in a large number of states around the nation to choose a Republican candidate to run against President Obama this year. In that time period, nothing has occurred to warrant reconsideration of Citizens United. The First Amendment barrier to such legislation has not diminished. And there is no basis for concluding that any quid pro quo corruption, the only kind that this Court has found relevant, has occurred as a result of the ruling.”
In sum, “What should ultimately guide the Court, [Abrams and McConnell] suggest, is not what has supposedly changed in the past two years but what has remained unchanged since the founding of this nation. The First Amendment has not changed. Indeed, it is so well-established that the First Amendment is especially protective of political speech and so rare that such speech is the subject of attempted regulation or censorship that most First Amendment battles have been fought over other questions such as how far beyond political speech the First Amendment provides protection, how closely the protections afforded to less protected speech track those afforded to political speech, and how to characterize the particular speech at issue.”
“What cannot be subject to serious debate,” they write, “is that the speech at issue here . . . is what the First Amendment protects with the greatest level of vigilance. It remains the case, as Justice Kennedy’s opinion in Citizens United reiterates, that the First Amendment ‘“has its fullest and most urgent application” to speech uttered during a campaign for political office,’ and that ‘political speech must prevail against laws that would suppress it, whether by design or inadvertence.’ And it remains true, as set forth in Buckley and repeated with approval in Citizens United, that ‘[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.’ That is what Citizens United was about and what this case is about.”