Oral arguments in Citizens United highlight flaws in campaign finance laws

Steve Simpson [Senior Attorney, Institute for Justice]: "In the case of Citizens United v. FEC, the US Supreme Court confronted the inescapable logic of the campaign finance laws: if the government can ban a broadcast advertisement that is paid for by a corporation, then it can ban movies and even books as well. In fact, during the argument, Justice Samuel Alito asked the government whether the ban on corporate funding of advertisements would logically apply to a book that called for the election or defeat of a politician, and the government said that it would.

When the government is taking the position that it can ban books because they are financed by corporations, it is time to scrap the campaign finance laws. This is America. We don't ban books here.

The government argued it is not actually banning advertisements or movies or books, but is only preventing corporations from paying for them with corporate treasury funds. But saying a corporation can't spend "treasury funds" on speech is like saying you can't spend money from your bank account on speech. It is a distinction without a difference. The fact is, it takes money - sometimes even corporate money - to get speech heard. If the government can regulate the manner in which we make our speech effective, it can prevent us from speaking.

The Court also briefly addressed the disclosure laws that would require those who financed the creation of "Hillary: The Movie" to disclose their names and addresses on a government website. The government's position is that donors should be able to maintain their privacy only if they can show evidence of past harassment. But, as Justice Roberts pointed out, by the time a speaker can show harassment, the harm has already been done.

Disclosure laws destroy the right to privacy and anonymity and often lead to harassment of those who choose to join with others, rather than to speak out on their own. If we take the rights of association and privacy seriously, then the burden should be on the government to show that disclosure is necessary to prevent harm."

The Institute for Justice filed an amicus brief on behalf of Citizens United.

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