The Supreme Court removes important limits on campaign finance

Friday, January 22, 2010

FOR MORE THAN a century, Congress has recognized the danger of letting corporations use their wealth to wield undue influence in political campaigns. The Supreme Court had upheld these efforts. But Thursday, making a mockery of some justices' pretensions to judicial restraint, the Supreme Court unnecessarily and wrongly ruled 5 to 4 that the constitutional guarantee of free speech means that corporations can spend unlimited sums to help elect favored candidates or defeat those they oppose. This, as the dissenting justices wrote, "threatens to undermine the integrity of elected institutions across the nation."

This result was unnecessary because the court's conservative majority -- including supposed exemplars of judicial modesty -- lunged to make a broad constitutional ruling when narrower grounds were available. It was wrong because nothing in the First Amendment dictates that corporations must be treated identically to people. And it was dangerous because corporate money, never lacking in the American political process, may now overwhelm both the contributions of individuals and the faith they may harbor in their democracy.

The majority found its pretext in the documentary "Hillary: The Movie," produced by a conservative group called Citizens United and released during the 2008 primaries. Citizens United wanted to make the movie -- "a feature-length negative advertisement," the court termed it -- available as a video-on-demand accessible through cable television. That brought into play a provision, part of the McCain-Feingold campaign finance law, that bars corporate and union political advertising close to the time of an election. That provision applied to Citizens United because the group is organized as a nonprofit corporation and because it takes a small amount of corporate donations. In our view, Citizens United should have been free to distribute the anti-Clinton documentary. The relevant McCain-Feingold provision could have been interpreted to permit such speech by a clearly ideological, as opposed to commercial, for-profit corporation.

Instead, the court's five-member majority went much further. It overruled a 1990 decision that upheld a state law prohibiting independent corporate expenditures in political campaigns. It overruled its own 2003 decision upholding the same provision of McCain-Feingold that it struck down Thursday -- so much for respect for precedent.

"We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers," the court said in an opinion by Justice Anthony M. Kennedy. Rules against direct corporate contributions to candidates still stand, but corporations are now free to engage in unlimited independent expenditures, something that Congress has banned since 1947.

But the conclusion that corporations have free-speech protections -- and they do -- does not mandate that they be treated identically to actual persons. Corporations and labor unions, which by implication now also will be free to spend without limit, have not been "censored" or "banned" from engaging in political speech, as the court claimed; rather, they have been required to spend through political action committees, which raise money in limited amounts from employees and members. Reasonable limits on their electoral spending recognized what is obvious to anyone who has not gone to law school: There is a difference between a corporate person and a real person.

President Obama said Thursday that he wants a "forceful response" to the ruling. That will not be easy, given its grounding in the Constitution. The decision invalidates state laws restricting corporate spending, which exist in nearly half the states. On a federal level, Congress could take steps to ameliorate the decision's impact, such as imposing stronger rules against coordination between campaigns and outside groups or lifting limits on the amount that political parties can spend in conjunction with their candidates. But the damage of Thursday's ruling, under the false flag of free speech, will not be easily repaired.

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