Tuesday, September 8, 2009
THERE ARE MANY complicated aspects of the campaign-finance case the Supreme Court is poised to hear Wednesday, but the issue boils down to this: Will the justices let corporations spend unlimited amounts to elect or defeat candidates for federal office? This course of action would be unwise and unnecessary to resolve the dispute at hand.
For more than a century, Congress has prohibited corporations from making contributions in federal elections. Six decades ago, in extending that ban to labor unions, Congress sensibly barred both corporations and unions from spending money on their own, rather than simply giving it to candidates, to influence federal elections.
In 1990, the court affirmed the constitutionality of this kind of restriction. In 2007, the court made clear that the corporate spending prohibition covered not only so-called magic words such as "vote for" or "vote against" but also communications that cannot reasonably be interpreted except as a call to such action.
All of this is what makes Wednesday's unusual session so ominous. The new case involves a critical documentary, "Hillary: The Movie," produced by a conservative group called Citizens United, and released during the 2008 primary season. In ordering up an unusual second argument before its new term begins, the court asked the parties to address the question of whether it should reconsider those two earlier rulings.
The case offers several plausible routes to avoid that dramatic step. Citizens United wanted to make the movie available as a video on demand accessible through cable television. That brought into play the rule that bars corporations from airing broadcast advertising advocating the election or defeat of candidates. The corporate provision applied to Citizens United for two reasons: The group is organized as a corporation, and it takes a small amount of corporate money among its donations.
Citizens United ought to have been allowed to distribute "Hillary: The Movie" any way it chose; this is just the sort of political speech that the First Amendment was designed to protect. But those protections can be upheld without eroding the prohibition on corporate-funded campaign advertising.
First, there is a difference between a campaign ad that comes blaring over the airwaves and a video on demand, which by definition is speech the listener asks to hear. Second, there is a difference between an ideological group such as Citizens United, which takes the corporate form, and a conventional for-profit corporation. The Supreme Court has already recognized that fact, and it carved an exception in the law for nonprofit corporations that don't take corporate funds; it should expand that further to include nonprofit corporations for which corporate donations constitute a minimal amount of their financing.
For the court instead to reach out and overrule the earlier cases would be judicial activism of the first order, precisely the opposite of the judicial modesty and adherence to precedent advocated by Chief Justice John G. Roberts Jr. The court should back away from this cliff.