A Welcome Supreme Court Review

Tuesday, July 14, 2009

Columnist E.J. Dionne Jr. decried the Supreme Court's decision to hear re-argument in Citizens United v. Federal Elections Commission -- which could result in corporations being freed to speak in elections after 60 years of government censorship -- as "extreme" and "activist" ["The Real Court Radicals," op-ed, July 13]. But judges are supposed to protect political speech, regardless of the speaker. Our system depends on this sort of principled judicial engagement, even when it means reversing earlier, erroneous Supreme Court decisions.

Corporations, no less than any other association of individuals, deserve the right to speak out about candidates and policies that may affect them. Indeed, media corporations such as The Washington Post Co. already enjoy this right. If Mr. Dionne is worried that businesses will use this freedom to secure favors from the government, the correct response -- the constitutional response -- is to restore limits on the power of government to dispense favors. The First Amendment demands nothing less.



The author is a staff attorney at the Institute for Justice, which submitted a friend-of-the-court brief in Citizens United v. FEC.


E.J. Dionne Jr. bemoaned the potential loss of a "century-old tradition" of banning corporate contributions to candidates in the Supreme Court's rehearing of the Citizens United v. FEC campaign finance case.

Three things are worth noting. First, the court is not considering overturning the Tillman Act of 1907, which prohibited such contributions. Only independent political speech by corporations might be permitted, not contributions to candidates.

Second, the striking down of Austin v. Michigan Chamber of Commerce, the 1990 ruling upholding the ban on these corporate campaign expenditures, would mean unions would also be free to engage in independent political speech.

Third, it's important to remember a primary goal of the Tillman Act: to silence a business community that objected to segregationist policies that drove up business costs. Sen. "Pitchfork" Ben Tillman, a loathsome racist and an architect of Jim Crow laws, pushed through the corporate ban to deprive his political opposition of money that would be used for opponents of Jim Crow.

One hopes the Supreme Court will decide that the McCain-Feingold campaign finance law's broad ban on certain political speech, as well as Austin's suppression of corporate and union speech, are impermissible violations of the First Amendment. Sadly, they are unlikely also to reject the vile Tillman's legacy of silencing unwelcome political speech.





Center for Competitive Politics


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