WASHINGTON — Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.The court's reasoning is specious -ridiculous even - in one important respect: corporations are not individuals, nor are they groups of assembled citizens. Applying rights intended for individuals or assembled citizens to corporations will cause no end of trouble.
The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.
The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.
...The justices in the majority brushed aside warnings about what might follow from their ruling in favor of a formal but fervent embrace of a broad interpretation of free speech rights.
“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
...The five opinions in Thursday’s decision ran to more than 180 pages, with Justice John Paul Stevens contributing a passionate 90-page dissent. In sometimes halting fashion, he summarized it for some 20 minutes from the bench on Thursday morning.
Joined by the other three members of the court’s liberal wing, Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings.
Eight of the justices did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals. “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way,” Justice Kennedy wrote. Justice Clarence Thomas dissented on this point.
...“The difference between selling a vote and selling access is a matter of degree, not kind,” Justice Stevens wrote. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”
Justice Kennedy responded that “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
...But Justice Stevens defended the restrictions struck down on Thursday as modest and sensible. Even before the decision, he said, corporations could act through their political action committees or outside the specified time windows.
...Justice Kennedy’s majority opinion said that there was no principled way to distinguish between media corporations and other corporations and that the dissent’s theory would allow Congress to suppress political speech in newspapers, on television news programs, in books and on blogs.
Justice Stevens responded that people who invest in media corporations know “that media outlets may seek to influence elections.” He added in a footnote that lawmakers might now want to consider requiring corporations to disclose how they intended to spend shareholders’ money or to put such spending to a shareholder vote.
Nevertheless, I'm optimistic about the supposed disaster of unrestricted corporate campaign finance spending on elections. Unrestricted corporate spending can be problematic to those writing the checks. Corporate spending can backfire in elections - it has in the past - provided the electorate is informed about what corporate or labor union spending is occurring, or has a way to find out.
Paradoxically, simplifying protective campaign finance laws can help limit confusion about who is doing what in electioneering. The blunt club of power is easier to see when it isn't being hidden behind PACs and 527 groups.
Disclosure is the key, and the Internet provides channels whereby such spending can be disclosed nearly in real-time. Disclosure has to be immediate, however, or very-nearly so, to catch the wave of spending that occurs just prior to elections, and expose the underhanded dealmaking that inevitably occurs. That lack of information, not the spending itself, is what caused so much trouble in the past!
Disclosure laws must be rigorously-enforced to prevent the excesses of the past from returning.
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