Thursday, January 21, 2010

Free Speech for Corporations and Unions Says SCOTUS

The Supreme Court ruling in Citizens United V. Federal Election Commission (FEC) is a significant development in American electoral politics and campaign finance reform that will have deep impact on the 2010 mid-term election. The 5-4 decision reverses precedent that barred corporations and unions from spending money to advocate the defeat or election of a federal candidate up until Election Day.

In many ways this decision is bad for the Democratic and Republican national party committees. While the ban is lifted on corporate and union expenditures, the political parties are not relieved from the prohibition on corporate (or “soft”) money. The danger exists that the major political parties’ voices will be displaced by corporate and union expenditures that will not have to exist under the limits imposed on contributions to federal candidates and committees. Corporations and unions will have the ability to easily allocate and spend money on political campaign messaging while the political parties labor under the expensive burden of raising limited contributions from individual donors and political action committees.

This decision is a boon to the political consultant class. The pool of resources and potential clients now available to the campaign professionals just exploded. Corporations and unions will need these professionals to plan and execute their political expenditures and the political consultant will grow richer and more influential thanks to this Supreme Court decision.

It is worth the effort to read the opinion of the Supreme Court written by Justice Kennedy as well as the dissent by Justice Stevens. The opinion of the Court speaks to the dangers of chilling free speech by not overturning precedent in this case. Justice Kennedy’s opinion also makes the sensible contention that just because elected officials listen and give access to donors it does not mean those same officials are corrupt. Most importantly, Justice Kennedy’s opinion instructs that the corporation has as much right to free speech as any other member of society and thus any laws muzzling corporate speech is a First Amendment violation. Throughout the opinion the argument is made that the court must guard against the role of the FEC as censor as it dictates who gets and does not get a voice in political campaign dialogue and debate.

Justice Stevens’ dissent is long and detailed but also sensible; rejecting out of hand that corporations are members of society (citing that a corporation cannot hold public office and has no soul). Justice Stevens is adamant that the five justices who voted to reverse the lower court’s decision in this case simply expanded the case from its limited nature, thus changing the case in order to change the law (a trend in the federal executive branch most prominent during the recent Bush Administration). The dissent goes on to observe that the majority of the Supreme Court violates the judicial process of maintaining what has been decided (stare decisis), observing that if it is not necessary to decide more, it is necessary not to decide more.

While Justice Steve’s argument is persuasive, sometimes it best to err on the side of caution. “Whose foot is to be the measure to which ours are all to be cut and stretched,” said Thomas Jefferson. Those words are applicable to what is sure to be a continuing debate about campaign finance reform because of this Supreme Court decision.

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baobao said...
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