- The Washington Times - Thursday, September 30, 2010

ANALYSIS/OPINION:

With the country broadly rejecting President Obama’s agenda and grass-roots citizens across the nation uniting in search of fiscal responsibility and limited government, the president is on the offensive. He is leveling a series of false attacks in an attempt to undermine Americans for Prosperity (AFP). However, on this issue, our constitutional-lawyer-in-chief needs some correction.

In a series of fundraising speeches for Democratic candidates, Mr. Obama has stated repeatedly that because of Citizens United, “there are groups with harmless-sounding names like Americans for Prosperity who are running millions of dollars of ads against Democratic candidates, and they don’t have to say who exactly the Americans for Prosperity are. You don’t know if it’s a foreign-controlled corporation. You don’t know if it’s a big oil company or a big bank.” Unfortunately for him, the president’s attack gets both the facts and the law wrong.

The landmark decision in Citizens United v. FCC held that corporations and unions cannot be barred from using general treasury funds to advocate expressly for or against the election of a candidate. The case is a huge free-speech victory, and it explicitly rejects the idea that “in the context of political speech, the government may impose restrictions on certain disfavored speakers.” The decision frees for-profit corporations, nonprofits and labor unions to rejoin the rest of the country in expressing their views about candidates for office.

However, Mr. Obama habitually has misrepresented Citizens United. It started at the State of the Union address, when he oddly stated that the case would allow foreign corporations to influence American elections. This is false; foreign nationals and foreign corporations were not affected by Citizens United and are still banned from making independent political expenditures.

Mr. Obama has now calculated that distorting Citizens United at political fundraisers to gin up campaign contributions for Democratic candidates is more valuable to him than shooting straight with the American people. His charge that as a result of the case, Americans for Prosperity (AFP) has engaged in nefarious behavior is baseless.

Americans for Prosperity does not and never has expressly advocated for the election or defeat of political candidates. Since 2004 - well before Citizens United - our mission has been to educate grass-roots Americans about the dangers of higher taxes, bigger government and unconstitutional legislation. We are actively and aggressively engaged in an advocacy campaign to raise awareness on these important issues. However, none of our activities or donations were affected by Citizens United.

Mr. Obama, our first law-professor president since Woodrow Wilson, should know well that the case that protects AFP’s membership list from government scrutiny is NAACP v. Alabama. In 1958, a unanimous Supreme Court ruled that the NAACP - the emerging grass-roots organization of its day - could not be forced to disclose its member list because of “the vital relationship between freedom to associate and privacy in one’s associations” and because it would result in an “unconstitutional intimidation of the free exercise of the right to advocate.”

The court was concerned that this intimidation would pressure members “to withdraw from the association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.” The court recognized the importance of dissenting voices and was working to preserve “freedom of association, particularly where a group espouses dissident beliefs.”

Of particular importance is that the court held “the crucial factor is the interplay of governmental and private action” that so severely threatens the rights of association and speech. Mr. Obama is using his bully pulpit and governmental power to pressure AFP, our donors and members from speaking out against his agenda. This is precisely what the court protected the NAACP from more than 50 years ago when the group was mobilizing grass-roots citizens to fight for their particular beliefs and interests.

Mr. Obama may think that twisting the facts and the law at Democratic fundraisers is a good way to inject some quick cash and energy into a party that is suffering from an infectious enthusiasm gap, but he is squandering what’s left of his credibility along the way.

Tim Phillips is president of Americans for Prosperity.

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