Amicus brief was the height of hypocrisy

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In case you didn’t notice, my column now has a title — “The Dark Side.”

And for the first column under the new name, it seems appropriate to describe the day I joined the Dark Side. Yes, it was one particular day in the summer of 1990.

I was living in Washington, D.C., working for what I thought was a pro-First Amendment PAC. Among my duties was to write the first draft of a law review article for the PAC’s legal director, on the U.S. Supreme Court’s First Amendment cases during the 1989-1990 term.

One of the cases decided that term was Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), in which the Court upheld a Michigan law banning corporations (both profit and nonprofit) from using general funds for independent expenditures in connection with state elections.

Because the corporations’ expenditures would not necessarily reflect the views of shareholders and customers, the majority held the contributions could be banned.

Justice Scalia took a different view: “The corporate actions to which the shareholder exposes himself, … include many things that he may find politically or ideologically uncongenial: investment in South Africa, operation of an abortion clinic, publication of a pornographic magazine, or even publication of a newspaper that adopts absurd political views and makes catastrophic political endorsements.”

This is and was sensible and self-evident to me. I would personally never purchase stock in Ben & Jerry’s Ice Cream, nor even eat their product, because I disagree with the corporation’s politics. But if the shareholders and customers don’t mind what the directors do with their profits, it’s no business of mine.

My draft was highly critical of the majority opinion, and although the rest of my draft on the other cases that term was used in the article, this portion was not. The director’s response on the fatal day in question was, “Your rhetoric is worse than Scalia’s.”

On further investigation, I learned that the PAC had actually drafted an amicus curiae brief in the case, which I found in a file cabinet. Words can’t describe what I felt as I read the brief, which supported the constitutionality of the Michigan law.

That’s right. A purportedly pro-free speech PAC exercised its First Amendment rights by filing an amicus curiae brief, defending the State of Michigan’s denial of others’ First Amendment rights in an area dealing with core political speech.

Things were never quite the same in the office. Sure, I still enjoyed drafting briefs defending the right of artists to display nude paintings on public property, and things like that.

But everything else changed that day. To me, a constitutional right is both a liberty with value in itself, and a means to preserve liberty; to the PAC, rights were just a light switch to be turned on or off as they suit, or fail to suit, parochial goals.

Here on the Dark Side, we support free speech not just because we like to express ourselves, but because we view it as protection against the government. We support property rights not just because we want to keep our property, but because we view it as a bulwark against the government.

So when the final U.S. Supreme Court opinions were issued on the final day of the term this year, I was thrilled, not so much for the opinions the court released, but for what they didn’t release.

No opinion was released in Citizens United v. FEC, No. 08-205. At issue is whether the FEC can regulate a full-length documentary film critical of a presidential candidate in the same way it can regulate a 30-second sound bite.

Rather than decide the case, the court instructed the parties to brief whether or not Austin should be overruled.

So, it is with great anticipation that I await the long-overdue restoration of the free speech rights that were denied nearly 20 years ago. And when the opinion is released, I will once again remember the day I read that amicus curiae brief — a document that remains to this day, the height of hypocrisy.