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The Court and Campaign Finance

The Court and Campaign Finance

By Robert Robb - January 30, 2010

Last week, in a narrow 5-4 decision, the U.S. Supreme Court held that corporations and unions have a First Amendment right to engage in political speech about candidates during elections.

The decision was roundly denounced, particularly on the left. President Barack Obama even scolded the justices to their faces in his State of the Union address.

In reality, however, the decision is likely to have relatively minor consequences. And there was really no other logical conclusion.

At issue before the court was a provision of the McCain-Feingold campaign finance law that prohibited corporations and unions from running television ads within 30 days of a primary and 60 days of a general election that mention the names of candidates for federal office. This provision was never sustainable.

For one thing, it bans true issue advocacy, not just campaign ads masquerading as issue advocacy. So, if Congress was doing something close to an election, corporations and unions couldn't run television ads legitimately trying to drum up grassroots support or opposition. The court has previously held that corporations and unions have a right to speak out on issues.

The court, however, did much more than strike down this limitation. It said that corporations and unions have an unlimited First Amendment right to say whatever they want, about whatever they want, whenever they want, in any medium they want. There really isn't any other logical conclusion that could be reached.

In dissent, Justice John Paul Stevens tried to make an originalist argument. This has been widely derided on the right, because Stevens was obviously insincere. Ordinarily, he doesn't regard original intent as all that much of a restraint. Still the argument should be taken seriously by those who take original intent seriously.

Stevens pointed out that corporations were novel things when the First Amendment was written, not the prevalent form of economic organization it is today, and the framers regarded the Bill of Rights as protecting individuals. That's true.

Corporations are, however, now pervasive. No one would argue, for example, that because a corporation is not an individual, the Fifth Amendment's protection against the taking of property without just compensation doesn't apply to it, or the Fourth Amendment's protections against unreasonable searches and seizures. How can corporations be entitled to some of the protections in the Bill of Rights but not others?

Then there is the rise of media corporations, which also didn't exist at the time of the founding. During the height of the 2010 campaign undoubtedly both Fox News and MSNBC will air highly tendentious programming that mentions the names of candidates for federal office. Virtually everyone would agree that attempts to muzzle them would violate the First Amendment.

But General Electric owns MSNBC (and NBC). Disney owns ABC. Do GE and Disney have First Amendment rights other business corporations don't?

Stevens tries to say that there is a separate First Amendment protection for institutional media. But by "freedom of the press" the founders meant the right of anyone to publish and disseminate. It was also intended to be an individual, not an institutional, right. Pamphlets and leaflets were the political blogs of that day.

Distinctions between corporations and between institutional media and other organizations who want to comment are unsustainable. That means either all have First Amendment rights or all can be muzzled. Which makes the majority decision, anyone can say anything, the only secure ground consistent with the First Amendment's original intent and actual language.

The consequences of the decision are likely to be far less than either those who applaud or condemn it anticipate. There will probably be a slight increase in donations to third-party business advocacy groups, such as chambers of commerce. But for the most part, business corporations aren't political risk-takers. They want to get along with everyone.

The major effect of the decision will be to make it less cumbersome for advocacy groups that are incorporated, on all sides, to speak out during elections. Hard to see how that's incompatible with the First Amendment.

Robert Robb is a columnist for the Arizona Republic and a RealClearPolitics contributor. Reach him at robert.robb@arizonarepublic.com

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