Brian T. Watson
I was very disappointed in the recent Supreme Court decision, Citizens United v. Federal Election Commission. The 5-4 ruling gives corporations and unions new rights to campaign for or against candidates for political office.
The court struck down previous prohibitions that had prevented these organizations from spending money from their general treasuries for campaign advertising during the last 30 days before a primary, and during the last 60 days before a general election. Although they may not contribute directly to candidates, corporations and unions now will have no limits on how much they may spend independently for or against a specific incumbent or challenger.
It is important to understand that prior to this decision, corporate and union "speech" was not banned or censored. It was, however, regulated as to quantity and timing.
I think that the majority consisting of Justices Kennedy, Roberts, Alito, Scalia, and Thomas made a number of mistakes. First, they relied on a wooden invocation of the First Amendment — the right to unabridged free speech — as though it were mindlessly created by the Founders and blindly and rigidly applied since its ratification in 1791.
The justices appeared unwilling to acknowledge that the government — in a variety of contexts — has regulated speech differentially based on the speaker's identity, the words spoken, and the potential practical effect of such speech.
The right to free speech has never been absolute or thoughtless — as though existing in a vacuum — and our government has long recognized that there are and can be compelling reasons to limit it. To some degree, and in qualified situations, we abridge the free speech rights of students, prisoners, members of the armed forces, foreigners, government employees and even airline passengers.
The First Amendment has never been frozen in amber, but has been applied with discrimination in light of a changing world.
Previous courts have embraced this notion. In 1990, in Austin v. Michigan Chamber of Commerce, for example, the Supreme Court acknowledged the "corrosive and distorting effects of immense aggregations of wealth in the marketplace of ideas." Thus it upheld restrictions on corporate spending, fearing that the practical consequence of all that money could result in the drowning out of other, poorer voices.
When the Bipartisan Campaign Reform Act of 2002 was passed, Congress was responding to a virtual mountain of research on the corruption that previous legislation had failed to avert. This evidence goes back 100 years to the Tillman Act of 1907 that banned corporate contributions to candidates. Back then the evils of the use of corporate money in connection with political elections were widely recognized.
This was the crux of the current case. Justice Kennedy, writing the 57-page majority opinion, concluded that "corporate expenditures do not give rise to corruption or the appearance of corruption." And in any case, he added — even more outrageously, I think — "no sufficient governmental interest justifies limits on the political speech of non-profit or for-profit corporations."
Oh yeah? How about the confidence that citizens can feel in the responsiveness of their government?
Justice Stevens, in a 90-page dissent, wrote that "the majority gives short shrift to the general societal interests at stake in campaign finance regulation."
He goes on to describe the history of how regulation came to be applied to corporations, how excessive corporate electioneering came to be viewed as dangerous to the functioning of representative democracy, and how Congress itself — no hotbed of bipartisan cooperation, as we well know — realized the need to restrict corporate and union spending.
Stevens also addresses and refutes the idea that the Founding Fathers would disapprove of free speech restrictions on corporations. He points out that there were only about 150 corporations in 1791, and those were viewed with plenty of skepticism. Many had state-granted monopoly privileges, which endeared them to few.
And if you think about it plainly, it is unlikely that Alexander Hamilton, James Madison, George Washington, Charles Pinckney, and the others who framed our Constitution could have imagined the nature of our world and its exigencies.
Justice Kennedy would be happy to have citizens think that this case was about censorship and preserving voters' exposure to diverse opinions. But that exposure was not remotely at risk. Rather, what is actually at risk is the integrity of our representative democracy and the balance of influences on the votes of our legislators.
It is ironic. Against a backdrop of wide unemployment, the recent Scott Brown election, the Tea Party insurrection, last summer's disrupted Town Meetings, and the unmistakable citizen anger, alienation, cynicism, and distrust of government; here the Supreme Court has issued a ruling that erodes yet a little more the voice of the little guy.
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Brian T. Watson of Swampscott is a regular Salem News columnist. Contact him at watson@nii.net.
