Citizens United: The IRS Scandal's Smoking Gun?
Citizens United v. Federal Election Commission did not cause the IRS scandal. And when the Democrats say it did, conservatives should turn their weapon against them with a vengeance. That can be done to great effect because although Citizens United did not cause the IRS scandal, it certainly foretold it.
In early 2010 the Supreme Court infuriated Obama by declaring the McCain-Feingold ban on independent corporate campaign spending unconstitutional, effectively disarming the Federal Election Commission as a potential political weapon. In justifying its decision, the court described with sobering precision the mechanics of subverting a regulatory agency for the purpose of suppressing political speech. And unfortunately for Obama and the Democrats, the IRS targeting is exactly the kind of abuse Citizens United warned against: a politicized regulatory bureaucracy using selective enforcement and the threat of litigation to advance the partisan agenda of a corrupt, irresponsible, or overreaching administration.
The majority opinion also asserted a principle that is anathema to the left. The court insisted that regardless of good intentions, voluminous deliberation, deference to the legislature, respect for precedent, and political correctness government regulation must be constitutional to be upheld.
That really aroused the left's ire. Justice Stevens spent most of his dissent shoveling out procedural chaff to keep the court's radar from getting a fix onthe First Amendment question. The challenge to McCain-Feingold's constitutionality, he groused, should never have been raised, not because the law was constitutional, mind, but in deference to nit-picking. Steven's beef is a stretch. An original facial challenge had been dropped in District Court, but only after the court denied a Citizens United motion, informing them it was bound by Supreme Court precedent to find for the FEC.
Not surprisingly, Stevens' rant that the best way to enforce the Constitution is to marginalize it gave rise to Obama's charge of "judicial activism." But despite Stevens' bad example, the White housecould have made its case without taking positions that were extreme, overtly partisan, and fundamentally dishonest. It did not. Solicitor General Kagan was an uncompromising advocate for the spending ban, but White House activism did not end there. Obama used his 2010 State of the Union address to insult the conservative justices to their face and threaten an end-run around Citizens United by legislation or executive order, an assault cheered on by congressional Democrats. True to his word, the president tried to choke off corporate spending with the Disclose Act, a hyperpartisan travesty designed to identify political "enemies" for harassment from the left while giving unions a pass. It failed in the Senate.
No longer able to wield the FEC as a partisan sword, and frustrated by his inability to stifle conservative speech with his shiny new law, Obama set about denouncing conservatives as enemies of democracy, while Democratic Senators bombarded the IRS with letters demanding a regulatory crackdown against the Tea Party and other right-wing extremists.
Obama and the Democrats got their wish, but now their bad behavior has come back to haunt them. In the wake of the IRS targeting scandal, the Citizens United saga looks for all the world like brass-knuckle Chicago politics. Worse, because they obviously shared the partisan objective of stifling anti-Obama campaign speech, the bad guys at the IRS and the White House-led Citizens United "resistance" are politically joined at the hip
Like the IRS harassment campaign that replaced it, FEC suppression of political speech relied on uncertainty, intimidation, and delay to work the administration's political will. This was not lost on the court. Citizens United pointed an accusing finger directly at the White House, warning against the chilling of political speech by "uncertainty caused by the litigating position of the Government."
The mechanism for regulatory abuse was the very case-by-case approach demanded by the administration and defended by Stevens. Avoiding a facial challenge to McCain-Feingold would have assumed the constitutionality of the regulatory scheme, guaranteed that Citizens United would lose, and shifted the burden of proof in subsequent cases from the government to individual speakers.It would also have compelled the court "to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech." For instance, should a book survive an FEC challenge the administration would nonetheless dig in its heels and "defend §441b's ban as applied to almost every other form of media including pamphlets."
The court refused to go down that path because sorting out the resulting confusion "would require substantial litigation over an extended time," and run "an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable. "We would have, in effect, prior restraint of protected political speech similar to that imposed by the IRS targeting:
[T]he FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoidlitigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question.
The final piece of the puzzle is which corporations would be most likely to "refrain" from speaking in the heat of a political campaign. That piece fell neatly into place when the court observed that the McCain-Feingold ban was "not even aimed at amassed wealth." That may seem counterintuitive, but Stevens inadvertently resolved the paradox on the very first page of his dissent:
Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. . . . Neither Citizens United's nor any other corporation's speech has been "banned."
McCain-Feingold was first and foremost a mutual protection pact that guaranteed a campaign funding advantage to incumbents in return for allowing the largest corporations and unions to evade the regulatory net. Far from curbing the political influence of crony capitalists like General Electric and Goldman Sachs, or unions like the UAW and SEIU, McCain-Feingold amplified their voices by silencing the voices of small and medium-sized businesses, Obama's hated "rich."
In 2010 only a tiny minority of corporations -- about two thousand out of the several million filing federal tax returns -- had PACs. Why? Because the great majority were small businesses with only a handful of shareholders and limited financial resources. These small corporations in no way resemble giant multinationals; but they certainly resemble the Tea Party witnesses at the June 4, 2013 Ways and Means Committee hearing, the folks Democrats like Jim McDermott, Earl Blumenauer, and Lloyd Doggett seemed determined to smear as greedy tax cheats plucking food from the mouths of hungry children.
The Ways and Means hearing perfectly captured this dynamic and gave it a human face: pontificating fat cats like Doggett, a well-heeled liberal from a landlocked Texas district whose campaigns are generously funded by the International Longshoreman's Association, public employee unions, and the national plaintiff bar telling home-grown, underfunded Tea Parties they got what they deserved for backing the wrong brand of social justice. After all, Obama's blatantly partisan Organizing for America was approved without a hitch.
When Citizens United is viewed from this perspective it is self-evident why Obama and the Democrats insulted and threatened the Supreme Court, smeared conservative groups as enemies of democracy, bombarded the IRS with letters demanding an unconstitutional crackdown on their political enemies, and hustled IRS Commissioner Douglas Shulman to the White House for 157 intimate chats.
Citizens United exposed with rare clarity and forcefulness the partisan implications of a decades-long political conflict between justices who uphold the Constitution and activists like Stevens who undermine it with the procedural nitpicking and bureaucratic rulemaking that expand and dehumanize government.
Even better, Citizens United hamstrung an Obama reelection strategy of wielding the FEC's regulatory power to stifle "enemy" speech, by delay and intimidation where possible, and with litigation where necessary. Thanks to the Supreme Court, the FEC was no longer available to play the role of crooked referee.
So, enter the Internal Revenue Service stage left armed with 157 White House visits, a BOLO, and the standard Chicago strategy of uncertainty, intimidation, and delay.Oh, yes... and Lois Lerner, who broke the IRS scandal with a planted question at an American Bar Association meeting. Lerner, formerly of FEC enforcement, where she is known to have harassed the Christian Coalition and Illinois Republican Senate candidate Al Salvi. It doesn't get much better than this.
Who needs a smoking gun, anyway?
Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at firstname.lastname@example.org.