How GOP Oligarchs and the Christian Right Are Hiding Behind the 1st Amendment to Ram Through Their Political Agenda


Once again, the First Amendment has become the latest refuge for America’s scoundrels and oligarchs: Republicans who only want to follow rules they like are declaring that their speech and religious freedoms are being violated unless they get their way.

This fraudulent flag-waving is unfolding in two high-profile fights. The first is the latest front in the ongoing war on Obamacare, where the U.S. Supreme Court announced it would hear two suits brought by Christian business owners who don’t want to include birth control in employee health plans.

The second is the GOP’s effort to block anti-corruption campaign finance laws. The GOP is screaming censorship after Obama’s Treasury Department proposed new rules that might deter political operators like Karl Rove from using non-profit charities as front groups for attacks on specific candidates—which goes beyond promoting issues.

In both instances, the scoundrels contend that the First Amendment lets them do what they want, and any contrary view—such as new laws or regulations from the Obama administration—is an affront to their fundamental freedom to do as they please.

The Obamacare challenge came out of dozens of suits filed soon after the Affordable Care Act became law. The Christian Right objected to including birth control options in health plans. The administration’s response was to issue rules noting that the minimum coverage standards for businesses, which included a full range of reproductive care, differed from houses of worship—which were given more latitude on including birth control.

However, the Christian-owned businesses whose challenges are coming to the Supreme Court argue that corporations share the same religious rights as citizens under the First Amendment. This is the latest effort by the Right to treat corporations as people with a complete complement of constitutional rights. 

In the Supreme Court’s controversial Citizens United ruling in 2010, the Republican-appointed majority expanded the political speech rights of corporations, allowing them to spend money in certain political campaigns as if they were voters—which they’re not. This latest claim of corporate religious freedom could be even more significant, Lyle Denniston, who has covered the Supreme Court for a half-century recently noted. 

“The Court is now poised to decide whether corporations also have a First Amendment right to exercise the freedom of religion, which can be thought of as another form of expression—that is, voicing or acting out one’s personal beliefs,” he wrote. “It may be too early to say so, but a decision by the justices recognizing such a corporate right may make the controversy over the Citizens United ruling pale by comparison.” 

On Saturday, the Wall Street Journal editorial page attacked the administration—which created an exception for houses of worship, religious schools, hospitals and charities. In its typical fashion of blurring details to buttress its view, it said, “The radical implication of the White House argument is that the Constitution doesn’t apply to commercial activity.” Their view is the radical one. Of course, the Constitution protects commerce, such as in contracts. But the Bill of Rights primarily protects individual rights.

The people who want to impose their religious beliefs regardless of cost or consequence are complaining not just that their freedom is threatened, but that corporate religious freedom exists, and must be elevated over the rights of people working for them. That’s radical. They conveniently forget that under Obamacare or any health plan, people can decide to take advantage of a medical procedure or not. These unruly Christian soldiers want to do away with that private choice from their employees, and have the audacity to argue their businesses are being deprived of religious liberty under the First Amendment.

Some legal blogs even go further in noting the hypocrisy and double standards at play. At Balkinization, Joey Fisher writes that large employers have been “enlisted… as one part of an overall federal project of health insurance provision.” He noted that they even get subsidies to extend coverage to their low-paid or oldest employees, because some of those will end up in state-run Medicaid polls or be covered by Medicare. Their role is facilitating access to insurance, not “to hand out drugs.”

The religious liberty protests are not the only twisted view waving a fake First Amendment flag. The other newly prominent example concerns a legal loophole that flourished after the Supreme Court’s Citizen United ruling: political operators creating and using non-profits as fronts for anonymous, large-scale attacks on political candidates.

Karl Rove was the first to go big with this strategy, because under tax law, non-profits do not have to disclose their donors. The Koch brothers soon followed, as did the Democrats. The Center for Responsive Politics found that at least $240 million was spent this way in 2012, mostly on negative television ads. These were the nastiest and least factual attacks, because their backers evaded accountability by hiding behind blandly named groups.

Many public-interest groups protested this abuse of charitable status to the Internal Revenue Service, which licenses non-profits. This week, the IRS released a proposed rule change that would expand the definition of political activity to any communication to more than 500 people that mentions a candidate’s name in the runup to an election. The idea is to try to ensure that the primary activity of a non-profit is charitable, or public education on issues, but not explicitly working to elect or defeat candidates.

Here, too, the GOP and its allies have been screaming censorship, saying that First Amendment freedoms are being violated. They’re saying, “How dare you?” That’s how dare you stop us from saying whatever we want, whenever we want, however we want, without any accountability or disclosure of who is behind attacks on candidates—even though we also are using government-granted benefits, namely non-profit tax status.

The Journal, as expected, called the proposed rule, “the latest IRS political crackdown.” It’s actually an overdue and sensible step to push political campaigns back into the political sphere, where, ironically, there’s barely any campaign finance regulation left that has teeth. For example, since the mid-1970s, any person could spend unlimited sums of their own money on a political campaign message. That was the result of the Supreme Court’s Buckley V. Valeo ruling. But the super-wealthy donors to non-profits set up and run by Rove and the Koch brothers don’t want to campaign that way. 

It’s worth remembering that the GOP and conservative Christians have filed dozens of suits to try to blow up the little that remains of federal and state campaign finance laws. The Supreme Court heard a case this fall brought by the GOP that challenges a cap on the total contributions that any person can give to both candidates and political parties in a campaign season. The basis for that legal limit is preventing political corruption by essentially turning piles of campaign cash into legal bribes.

There are dozens of additional suits brought by the GOP and conservative Christians, especially surrounding same-sex marriage state ballot measures, to overturn disclosure laws that would list donors. Here, again, the party that is complaining the loudest about losing First Amendment freedom doesn’t want to stand in public next to its own words. Tea Party groups have sued to hide their funders, claiming they’re like black Americans in the worst of the Jim Crow era. 

These self-serving abuses of the First Amendment are ridiculous and an insult to history. Nobody is stopping right-wing crusaders from following their religious beliefs at home or from reaching into their pockets to pay for their own political messages. But once they step into the public sphere, either though running government-chartered corporations or creating non-profit charities, there are legal obligations to employees and tax laws to be followed. I may be late for work, but that doesn’t mean I get to run red lights.

Waving the freedom flag is the right’s favorite argument. But claiming First Amendment rights as a way to evade uncomfortable laws and inconvenient legal standards—passed by an administration they intensely dislike—turns the Constitution’s most fundamental protections into a refuge for scoundrels and oligarchs.

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