Yesterday’s inauguration closes an election season unprecedented in many ways, including unprecedented in its sums of dark money. Today marks the eleventh anniversary of the Supreme Court decision that opened the door for that dark money: Citizens United v. FEC.  In that decision, the Court allowed for the creation of a world of shell companies and accounting tricks that hide political patronage from the public. It did so to avoid what it said was an even greater danger than unchecked political spending: the possibility that effective campaign finance laws could act as a book ban. Senator Ted Cruz even recently cited this hyperbolic fear—that a single change in the Court could overturn Citizens United and usher in book bans—to rush through a Supreme Court nomination in the midst of an election.

Books bans are indeed a scourge and offensive to the First Amendment, but Cruz’s and the Court’s flippant comparison of campaign finance laws to them is unfounded and trivializes the evil in banning books. The comparison minimizes the harm done by a book ban—the manipulation of the public consciousness—and treats a book ban as a petty technicality that smears more than just campaign finance law as censorship. The comparison needlessly opened the door to corruption, relying on logic so tortured the Court subsequently abandoned it when the plaintiff was less politically convenient.  

Where did the book ban comparison come from?

Citizens United began when a non-profit corporation sought to release a “feature-length negative advertisement” attacking then-Presidential primary candidate Hillary Clinton during the 2008 primary elections. The movie would be free to viewers, and the corporation also pushed advertising, ostensibly for the movie but which also attacked Clinton. The law permitted the non-profit corporation to do all this if it paid for it with donations from individuals and disclosed those donors. But the corporation wanted to use donations from for-profit corporations, and didn’t want to disclose any of its donors, so the corporation sued and eventually ended up at the Supreme Court.

At the oral argument, the Justices first debated whether this movie was sufficiently like television campaign ads—the primary focus of campaign finance regulations—to come under regulation. But the Justices then asked a question that has been called a “turning point” in the case: if the laws applied to the corporation’s movie, would they also apply to and perhaps permit the government to ban a book?

Of course, the laws wouldn’t apply to your typical book—long form works that one must search out and purchase make for terrible electioneering. Even a book expressly advocating the election or defeat of a current federal candidate, itself an uncommon text, wouldn’t be restricted. Rather it would have to be a book with corporate authorship (merely using a corporate publisher wouldn’t be enough), involve an expenditure rather than the more typical book issued for sale, and finally that expenditure would have to be funded by for-profit corporations rather than individual donors. Only by conjuring a nonexistent book laden with these qualifications could they manufacture a situation where campaign finance laws would have even an incidental impact on a book. The government’s attorney noted that the law didn’t ban any books and could only limit the funding of an extremely limited type of book. But the book ban slur was born. 

The smear so motivated some Justices that they called for re-argument and once again the hypothetical book ban featured prominently. This time the government noted the total nonexistence of this hypothetical book despite the challenged law’s existence for over 60 years, but still a majority of the Justices were not dissuaded.

Finally, in his majority opinion, Justice Kennedy again pointed to this never-before-seen book, erroneously stating that a decision upholding the law would allow the government to ban “printing books.” Because of this feared possible application, no matter how remote, the Court decided there could be no limits on independent corporate campaign activity of any form.

Campaign finance laws are nothing like books bans

Citizens United compared campaign finance laws to book bans because, it reasoned, one could imagine a hypothetical book that could arise in a way that campaign finance laws might proscribe. Because the law might prevent that book from arising in that exact circumstance, they called the law a book ban. But historically, book bans have not been laws that have such incidental impact, but rather laws designed to ban certain ideas. 

For example, prior to the Civil War, slave states censored abolition materials. In 1837, Missouri “prohibit[ed] the publication, circulation, and promulgation of abolition doctrines,” other slave states soon followed. These publications were intended to persuade the local population to turn against slavery. The book bans did not hinge on some peculiarity about the publication’s funding or their medium, but rather sought to stop the spread of anti-slavery ideas.

Opponents of book bans, including the Framers, have cited their use in suppressing ideas as the reason book bans are so offensive. Milton wrote that book bans are “to the discouragement of all learning, and the stop of truth, not only by disexercising and blunting our abilities in what we know already, but by hindering and cropping the discovery that might bee yet further made.” de Tocqueville wrote the need for free speech so citizens can “discriminat[e] between the different opinions of his contemporaries, and [] appreciat[e] the different facts from which inferences may be drawn.” Madison attacked an early act of censorship by our government, the Alien and Sedition acts, stating the laws outlawed the “free[] examin[ation] [of] public characters and measures.” Jefferson denounced a book ban he potentially broke as an attempt to “dogmatise religious opinions for our citizens.” 

In other words, book bans are offensive because they outlaw the saying or hearing of ideas, and in so doing attempt to control the thoughts of those who would hear them.

Campaign finance laws, however, could have no such effect, as shown by their impact on the movie in Citizens United. First, nothing in the law prohibited the distribution of the ideas contained in the corporation’s movie, which ideas were and are still widely distributed. Nor did the law outlaw even the particular movie in the form it was made—campaign finance laws did not stop an individual from making and distributing an exact copy of the movie. Indeed, the corporation was even free to distribute the movie itself if it secured lawful and transparent funding sources. The fact the “ban” dreamed up in Citizens United could be easily circumvented simply shows the campaign finance laws were nothing of the sort.

Only by concocting a hypothetical where an illegal act is incidentally tied to an unlikely medium for a campaign message—a book—could the Court’s ruse work. 

The book ban analogy’s logic falls apart

If any law that prevents a book from arising in a particular circumstance is a “book ban,” then under the Court’s logic many laws are book bans. For example, there are labor and fire safety laws which a publisher must follow. Similarly, copyright laws prohibit the republication of protected materials, with potential criminal penalties. A writer who willfully broke those copyright, labor, or fire safety laws is not immune from prosecution simply because their illegal efforts resulted in a book. But that’s exactly the logic the Court employed to attack campaign finance laws: no matter what laws are broken along the way, the Constitution supposedly immunizes all actions as long as they result in a book in the end. 

Of course, even the Citizens United majority knows that logic is nonsense. That’s why it refused to follow it in a case that was almost identical to Citizens United, but which involved a foreign citizen rather than a corporation. In that case, the foreign citizen wanted, among other things, to distribute literature supporting President Obama’s reelection–a far closer analog to a book than the movie at issue in Citizens United.  Nevertheless, in an opinion authored by then-Judge Kavanaugh, the district court upheld the campaign finance laws that prevented the individual from distributing the literature.  Indeed, it upheld the laws despite the fact that they would equally ban the foreign citizen from distributing his campaign advocacy in book form. The Supreme Court took no exception to the application, summarily upholding the decision on appeal.

While one could attempt to reconcile this decision with Citizens United by pointing to the citizenship of the author—indeed the district court relied almost exclusively on the fact foreign citizens can’t vote or serve on juries to conclude that the government could regulate these plaintiffs’ political activities—but that is a distinction without a difference when it comes to book bans. True book bans are unconstitutional regardless of the citizenship of the author or their status in their ability to participate in American governance. For example, the Supreme Court struck down a book ban that applied to works of non-American authors. Another court said that a ban on an English author’s book violated the First Amendment and was “inimical to a free society,” without pausing to consider the author’s citizenship. Madison’s objection to the Alien and Sedition Act was not confined to its application to citizen authors, but rather recognized any limit on access to writings from anywhere irreparably injured the American recipients. Jefferson’s condemnation of censorship was in defense of a book written by a French citizen. When a law attempts to suppress the spread of ideas—when it is a real book ban—that law is unconstitutional regardless of the citizenship of the idea’s author.

So if campaign finance laws are truly book bans, as Citizens United claimed, then their application to materials from foreign sources would be unconstitutional too. Yet the Court couldn’t follow its own logic. Rather, the fact the Court explicitly recognized the constitutionality of campaign finance limits when it comes to foreigners simply demonstrates the Court knows campaign finance laws are no book bans. These laws, when applied to either a foreign citizen’s pamphlet or a domestic corporation’s movie, do not suppress any ideas nor ban any books. Instead, they constitutionally attack a distinct evil: the corruption and deception that can come about from unrestrained and nontransparent campaign spending. 

Imaginary Book Bans, Real Corruption

The Court’s and Senator Cruz’s claim that campaign finance laws would turn into book bans was and is contrived, as the Court has since tacitly acknowledged. The flood of dark money it unleashed and the corruption it has caused is, however, very real. Perhaps instead of combatting imagined censorship, the Court and members of Congress should be focused on the real threats to our country.