Is the Washington Post story on the Citizens United v. FEC Supreme Court opinion and the public’s reaction to it dishonest, sinister, or just incompetent? I’m not sure, but I am sure of this: it is a classic example of why polls are a terrible way to guide national policy and lawmaking. The Post article begins…
“Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.”
The statement is false and misleading. Whatever the merits or deficiencies of the Citizens decision may be, the vast majority of the American public has no idea what the Supreme Court ruling was, or why it was made. American might oppose the predicted results of the ruling, but they do not have the information necessary to oppose the ruling itself. Not that this stops opponents of the ruling from jumping up and down with glee at the Post’s poll: Fred Wertheimer, president of Democracy 21, said the polling shows the Court is out of touch with American public opinion about the influence of money in the electoral process. “The Post poll demonstrates that the American people fully understand and overwhelmingly reject what the Court has done,” Wertheimer said in a statement. “It’s hard to conceive of another Supreme Court ruling in which five Justices have found themselves so out of touch with the American people.”
Well, you know what, Fred? The Supreme Court exists specifically because the public is unqualified to make legal distinctions regarding difficult issues of law and the U.S. Constitution. The Court, in fact, should ignore the public completely; that’s why the Justices are appointed for life, and why they don’t stand for election. I’m quite sure the Supreme Court was “out of touch” with the public on Brown v. Board of Education and Roe v. Wade too. Please don’t insult our intelligence by asserting that the public “fully understands” what the Court has done, or what the Court ever does, to be unkindly frank. This was a Constitutional Law ruling, and if there is one thing we know, it is that most of the public does not understand the Constitution. That’s why we have a Supreme Court, in fact: very few people understand the Constitution.
Or, I’m afraid, believe in it. The Citizens United opinion was not in favor of wild corporate political spending; it was in favor of the First Amendment. Did any of the poll takers listen to or read the transcript of the oral arguments? The Obama Administration’s attorney took the position that the Federal Election Laws could and should ban not only ads and movies, but also books. Does that set off any alarms with the public? It might, except that’s not the question the Post asked. What it asked was this:
“Do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections?”
As The Center for Competitive Politics president Sean Parnell pointed out, the Post’s question misrepresents the opinion. The kind of corporate spending approved by the Supreme Court in Citizen’s must be independent of candidates and parties. The Post’s question was incompetently/unethically/unscrupulously phrased to provoke a negative response, and it got one.
If the Washington Post, which opposed the decision along with most Democratic-leaning newspapers (which, as corporations with special First Amendment protections, can spend and say whatever they like in support of, or opposition to, political candidates, but which feel it is dangerous for other organizations to be able to exercise the same right) really wanted to present the poll in a fair perspective, it should have also asked if wealthy people should have the right “to spend as much money as they want to help political candidates win elections”—including, in many cases, themselves, like New York Mayor Bloomberg, Sen. John Kerry, and others. Would the public “fully understand” that guaranteed Constitutional right, and signal its full approval? I am very sure the public would not, but the Post didn’t ask.
There have been many polls showing that significant segments of the American public don’t agree with the broad guarantees of the Bill of Rights, and the recent Post poll is just one more of these. I think an open debate about the pros and cons of giving organizations the right of unlimited speech is healthy (although the Citizens opinion doesn’t give them that), but efforts to use badly worded poll questions to justify abridging First Amendment principles are unethical, one way or the other.