That thud you heard this morning as you enjoyed your coffee and read the paper? That was the sound of one hundred years of legal precedent and millions of dollars hitting campaign floors everywhere as the ruling in Citizens United v. Federal Elections Commission was announced. The decision unwound significant portions of campaign finance rules, holding that the government may not ban political spending by corporations in candidate elections. A bitterly divided Court removed existing restraints on what and when for-profit and non-profit corporations can spend on the campaigns, just in time for a slew of primaries, including one twelve days from now in Illinois.
Like many major Supreme Court decisions, and this is a major Supreme Court decision, the ruling raises as many questions as it answers. The decision strikes portions of campaign finance regulation that bars corporations from using their own in-house money to spend on campaigns. According to Justice Kennedy, author of the decision for the Court’s 5-4 majority, the identity of the political speaker (the person spending dollars on campaigns) cannot be the basis for restrictions on independent political spending.
But, the decision does not address one of the central issues plaguing campaign finance regulation and that is, crafting the difference between a political message that involves “express advocacy” and one that involves “issue advocacy”. The Court has suggested that Congress has more power to curb express advocacy versus issue advocacy. That was, until this decision.
Justice Steven led the dissenters in a passionate charge against the majority, stating that the Court had made a grave error in equating corporate speech the same as human speech. According to Justice Stevens, the only thing that had changed in campaigns or campaign finance reform was the makeup of the Court–a distinct jab at his colleagues Justice Samuel Alito and Chief Justice John Roberts.
The Court left in place a few regulations, such as the requirement that any corporation that spends more than $10,000 in a year to produce or air advertising or content covered by federal restrictions must file a report with the Federal Elections Commission revealing the names and addresses of anyone who contributed $1000 or more to the ad’s preparation or distribution. It also left in place the requirement that a if a political ad is not authorized by a candidate or a political committee, the ad must state who is responsible for its content, plus the name and address of the group behind the ad. Only Justice Clarence Thomas dissented on upholding these requirements.
For those of you who thought there was already far too much money in political campaigns, prepare to be appalled at the level of direct corporate spending that will now take place. As for those on the right who like to decry “liberal, activist judges” I would simply ask you to point to any precedent, beyond the sweeping attacks on campaign finance law implemented by Justices Scalia and Thomas in Austin v. Michigan Chamber of Commerce that suggests undoing, let alone even questions, decades of legal opinions that while corporations may have legal personhood, that is not the equivalent to a grant of human rights to corporations.
And the reason the Court has never equated corporate personhood with actual personhood is because, as articulated by Justice Stevens, corporations “have no consciences, no beliefs, no feelings, not thoughts, no desires” and most importantly are “not members of ‘We the People’ by whom and for whom our Constitution was established.”
Even former Chief Justice William Rehnquist warned against treating corporate spending as the First Amendment equivalent of individual free speech is to “confuse metaphor with reality”. But that is just what the Roberts Court did. And now health care, climate change, and any issue that pits the good of the people over the corporate bottom line is at risk.
photo courtesy of unhindered by talent via Flickr