The Supreme Court Sells Out To Corporations


Joseph Schuman Senior Correspondent

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(Jan. 21) — The Supreme Court’s rejection of fundamental limits on election spending by corporations reaches far beyond the two court precedents overturned today.

In a fractured 5-4 majority, justices ruled that political-speech rights for corporations are equal to First Amendment rights for individuals. And they undercut at least a century of political reform by declaring that the special influence and access to power linked to big campaign spending from corporations does not amount to corruption.

The convoluted split in the ruling demonstrated a bitter divide over the issue, and also the complexity of campaign-finance law: Four justices dissented to all but Part IV of the majority opinion, one justice who backed the rest dissented to Part IV, justices wrote or joined two concurring opinions, and others wrote or joined two additional opinions that both dissented and concurred.

Part IV of the ruling, backed by all justices but Clarence Thomas, upheld an element of the 2002 McCain-Feingold Act that requires sponsored televised election communication by anyone but the candidate to include a disclaimer saying who paid for it.

But other key parts of McCain-Feingold, which prohibited corporations and unions from using their general treasury funds to pay for electioneering speech close to election day, and a 1947 law restricting corporate and union political spending, were gutted by a majority that found they violated the First Amendment.

“The censorship we now confront is vast in its reach,” Justice Anthony Kennedy wrote for the majority.

McCain-Feingold and earlier campaign-finance restrictions have a chilling effect on political speech, Kennedy said, because the threat of criminal prosecution or fines from the Federal Election Commission could prompt a speaker to “ask a governmental agency for prior permission to speak.” The restrictions, he added, “thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit.”

The ruling reverberated across the political system, where it looked set to unleash a wave of new corporate or union-funded ads for and against candidates in this year’s midterm elections.

Senate Republican leader Mitch McConnell, long one of Capitol Hill’s biggest opponents of campaign-finance rules, described the decision as “an important step in the direction of restoring the First Amendment rights of these groups.”

President Obama, however, called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

The White House will start work immediately with Congress to revise campaign-finance rules in light of the decision, Obama said.

But the ruling casts doubt on the very premise underlying laws that restrict campaign finance, with the majority finding that spending from corporations or wealthy individuals in itself doesn’t “give rise to corruption or the appearance of corruption.”

“That speakers may have influence over or access to elected officials does not mean that those officials are corrupt,” Kennedy wrote. “And the appearance of influence or access will not cause the electorate to lose faith in this democracy.”

That assertion appeared to anger dissenting Justice John Paul Stevens, backed by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, who found the majority’s reasoning dangerous.

“The court’s ruling threatens to undermine the integrity of elected institutions around the nation,” Stevens wrote in a dissent.

The case originated with a documentary called “Hillary: The Movie,” an unabashed attack on Hillary Rodham Clinton that a conservative group, Citizens United, wanted to release in cable video-on-demand during the 2008 primaries. Citizens United canceled those plans after it lost a court fight with the FCC, which judged them a violation of McCain-Feingold bans on corporate-funded televised attacks or promotions of a candidate within 30 days of an election.

But the group showed the movie in theaters and distributed it online and on DVD.

For that reason, and the fact that Citizens United could have aired the film before the primaries, Stevens said “neither Citizens United’s nor any other corporation’s speech has been ‘banned.'” And he slammed what the dissenters viewed as “a dramatic break from our past” in the court’s “misguided” rejection of both congressional action and two earlier Supreme Court rulings, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission, a 2003 decision that upheld the the core provisions of McCain-Feingold.

The dissenters also assailed the majority’s equation of corporate free-speech rights with those of individuals.

“In the context of election to public office, the distinction between corporate and human speakers is significant,” Stevens wrote. “Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.”

David Bossie, president of Citizens United, nevertheless said the court on Thursday “has made possible the participation in our political process that is the right of every American citizen.”

For campaign-finance advocacy groups and others who see the intrusion of moneyed interests as one of the biggest problems in government, the decision was a major setback.

“The Roberts Court today made a bad situation worse,” Common Cause President Bob Edgar said. “This decision allows Wall Street to tap its vast corporate profits to drown out the voice of the public in our democracy.”

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