08/14/2012 09:46 am ET Updated Oct 14, 2012

The Federal Election Act Is Still the Law of the Land

The Citizens United case doesn't say what everyone says it does. We are behaving as if the case opened floodgates to unlimited spending on elections not previously allowed, and it does nothing of the sort.

Citizens United, a corporation, asked for a declaratory judgment that its proposed unlimited spending on radio and television ads promoting and selling DVDs of its movie would not violate the Federal Election Act ("FEA"). The movie said that Hillary Clinton, who was then campaigning for the nomination, was not fit to be president. The ads were planned to be broadcast up to the day of the election.

Article III, Section 2 to of the Constitution limits the Court to cases and controversies, forbidding most advisory opinions and moot cases that have lost their practical significance. The president and the Courts are not required to enforce a prior decision in a subsequent matter that has different material facts.

The Supreme Court decided that the ads for the movie would not necessarily violate the FEA, and should be entitled to the "Press Exemptions" that Congress put into the FEA to protect the rights of free speech of corporations that distribute newspapers and television news broadcasts. Although the election was over and Hillary was Secretary of State by the time the Supreme Court made its decision, the case would be applicable to subsequent situations allowing ads for movies before an election.

The Citizens United decision about ads for movies was not dicta -- the part of an opinion that should be ignored. The decision made sense. Movies, like newspapers or broadcast news programs, are not thrust upon the public like electioneering ads. We can choose to watch them or not. They can readily be responded to, unlike electioneering ads that are often bits of mudslinging, half-truths and lies delivered as frequently as money can buy up to the day of election with little opportunity to respond.

Congress found that electioneering ads can swing a close election for those with the most money. There was no such finding about ads for newspapers, news broadcasts or movies. The Court simply included ads by corporation for movies to the protected Press Exemptions. Whether such ads are disguised electioneering and illegal will be addressed by the Federal Election Commission when and if there is such a case or controversy before the Court.

The preamble to the Constitution is "We the People of the United States" -- not We the People and the Corporations of the United States. Corporations are important. Without their limited liability, business could not be adequately financed and flourish. Corporations have been given important rights as "citizens," but no one has ever suggested that corporations should have the right to vote.

Giving corporations unlimited rights to buy electioneering ads would give them a more important right than the right to vote. It would give them the right to control a close election.

Free speech has always had limits. Libel and slander and endangering life (shouting fire in a crowded theater) are examples. The FEA has been the law of the land, appropriately limiting free speech for more than 40 years. It is intended to level the playing field of an election. Allowing corporations and unions to buy a close election and corporate favors from Congress or the President destroys public confidence in government.

There was shock and anger after the Citizens United decision was erroneously thought to give corporations the right to control close elections. Editorials appeared that the decision would turn our democracy into a plutocracy. Signs appeared: "I'll believe that a corporation is a person when Texas executes a corporation."

Citizens United has been attacked as the worst decision since Dred Scott. The Supreme Court's pontification that the Missouri Compromise of 1851 was unconstitutional led to anger and violence in the Territories and was a major cause of the Civil War. The lesson was that the Supreme Court must avoid dicta and the Executive must ignore it.

The framers of the Constitution, whose intentions Supreme Court Justices consider important, intended that elections be a meeting of electors governed by fairness and rules. The FEA is consistent with the framers intentions.

We should not second guess what the Supreme Court will do when, and if, the constitutionality of the FEA restrictions on electioneering is before it. The Health Care decision taught us that.

The Federal Election Commission (the FEC) and President Obama are obligated to enforce the Federal Election Act of 1971, as amended!