JORDAN: Assessing the Supreme Court’s McCutcheon decision

Time to revisit Citizens United and IRS targeting scandals

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Many Americans will rightly recognize the Supreme Court’s decision in McCutcheon v. Federal Election Commission as one that reaffirms free-speech rights in America.

However, those of us leading the effort to get to the bottom of the Obama administration’s IRS targeting scandal read the decision and felt an eerie sense of deja vu.

We have seen this movie before, and we know how it ends.

In 2010, the Supreme Court similarly ruled in the Citizens United case that restrictions on political speech are unconstitutional. Though the case strengthened the letter of the law in regard to free-speech rights, it has now become clear that some used the decision as a catalyst to launch a covert war against conservative individuals and organizations who were seeking to exercise those rights.

Chief among the instigators was President Obama. Days after the court’s ruling in Citizens United, the president stood before Congress and publicly chastised the court for its decision. Days later he lambasted the ruling as opening “the floodgates for special interests — including foreign corporations — to spend without limit in our elections” and urged the situation be remedied.

In speech after speech, the president spoke of the perils of the decision, that it created “front groups with misleading names” and how it hurt the democratic process. Weeks before the 2010 midterm elections, the president singled out groups by name and warned “shadow groups [were] already forming and building war chests of tens of millions of dollars to influence the fall elections.” He even went so far as to declare Citizens United “a problem for our democracy.”

Rather than bolstering an environment for political debate to flourish, the president’s actions paved the way for a subversive assault on the free-speech rights of those who disagree with his point of view.

Our investigation showed how the rhetoric of the president and his allies was the causal factor in the IRS‘ targeting of conservative groups. In the words of ex-IRS employee Lois Lerner in October 2010, the IRS needed to “fix the problem” of nonprofit political speech.

She worried that Tea Party applications could be the “vehicle” for whether Citizens United applies to nonprofit rules. In the ensuing months, the IRS scrutinized, delayed and harassed conservative applicants for tax-exempt status.

As goes the old maxim, history doesn’t repeat itself, but it does rhyme. Four years ago, in response to a similar Supreme Court decision, the IRS worked to sideline conservative groups from lawful political speech.

We must not allow McCutcheon to become a flash point for a renewed attack upon lawful political speech of American citizens. We must be vigilant to identify and expose any attempts by the administration to silence those engaged in lawful political speech.

In response to the court’s ruling on a different topic, Obamacare, the president embraced the concept of “settled law,” declaring that “[t]he Supreme Court has spoken. It is the law of the land.” We are a nation of laws, and the court’s ruling must be respected. As we saw with the IRS targeting, the true unraveling of democracy’s fabric happens when officials in positions of power seek to undermine the law for their own ideological benefit.

The work of improving our democracy is always ongoing. The court’s McCutcheon decision is a good start for free speech, but it is not the end.

As the chief justice has written, “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” The administration has proposed new regulations that would further limit the political speech of 501(c)(4) groups. This proposal gives the tie — and the ballgame — to the censor.

The administration has received 149,000 comments on this rule, the overwhelming majority of which have been negative. In our subcommittee, we heard testimony from a bipartisan group of citizens about how the administration’s proposal restricts their speech.

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