Conservatives who complain about “liberal activist judges,” will undoubtedly want to hold a tea party to protest the decision last week of a majority of the United States Supreme Court in a case entitled “Citizens United v. Federal Election Commission.” However, the tea party will likely be a celebration rather than a protest, as it was the conservative core of the Supreme Court who changed the existing law – not the liberals.
The Court’s decision – which overruled limitations on corporate political advertising – will have a dramatic impact on all of our lives, at least until another group of activist Supreme Court judges with different ideological perspectives change the law again in 15 or 20 years.
The case involved a non-profit corporation, Citizens United, that had produced a documentary film named “Hillary: The Movie.” The “Hillary” referred to in the title was, of course, none other than Senator Hillary Clinton, who as we all know, was a candidate for the Democratic Party’s 2008 Presidential nomination. The film consisted in part of interviews with political commentators and others, and most of them were highly critical of Senator Clinton.
A Federal law entitled “The Bipartisan Campaign Reform Act of 2002” prohibited corporations and unions from using their general treasury funds to spend money for political advertising expressly advocating the election or defeat of a candidate for Federal office. In other words, corporations and unions did not have the same rights of political speech as individuals or other organizations, such as political action committees.
Several prior cases of the U.S. Supreme Court – one decided as recently as 2003, and another in 1990 – had upheld legislative restrictions on the rights of corporations and unions from using their general funds for “electioneering.” However, when the Citizens United case came before the Court, the majority overruled those prior decisions, notwithstanding that the law strongly discourages willy-nilly reversals of prior decisions, and Chief Justice Roberts had sworn at his Senate confirmation hearings to uphold precedents.
However, one does not get appointed to the Supreme Court of the United States by being a fool, or by being inarticulate. Political motivations for decisions can be masked by artfully worded rationale in lengthy opinions. So it was with the majority’s decision in the Citizens United case.
The majority opinion, 57 pages worth, extols the virtues of the First Amendment’s right of citizens of this country to freedom of speech – a virtue about which we would all agree – and then holds that corporations and labor unions are citizens to which that right of free speech extends. This is the part of the decision that has caused such a furor, although the Court cites precedent holding that corporations have been afforded First Amendment rights in other cases.
The Court thus held that “political speech must prevail against laws that would suppress it, whether by design or inadvertence;” that “political speech does not lose First Amendment protection simply because its source is a corporation.” The Court viewed The Bipartisan Campaign Reform Act as government suppression of free speech, and scoffed at the idea that corporate political spending will give rise to corruption or the appearance of corruption.
If you think it is naïve for the Court to think that corporations spending large amounts of money in favor of or against a candidate will not corrupt the political process, consider also that the Court further stated that simply because corporations have influence over or access to elected officials does not mean that those officials are corrupt, or that this will not cause the public to lose faith in their democracy.
It would likewise be naïve for us – the public – to think that the Supreme Court rendered this decision simply because it thinks as an abstract legal principle that corporations should have freedom of speech.
The conservative majority of the Court is well aware that corporations with substantial interests in the political process, legislation and regulations also have huge amounts of money available to them by which they may influence those things – much more so than individuals and even labor unions. As we have seen in the recent controversy over health care legislation, corporations can exert great influence over public thought through advertising and over the decisions of public officials through contributions.
The Court’s conservative majority is also aware that many of the members of the boards of directors of those large corporations with huge amounts of money are, like them, conservatives, who are, of course, likely to finance campaigns for conservative causes and candidates. That is the real rationale for the Court’s majority opinion.
There are many conservatives applauding the Court’s decision. But, they should be careful what they wish for. Political views and moral and ethical standards swing like a pendulum over time, and it is wise to remember that corporations exist, first and foremost, to make a profit.
If a corporation finds that its economic interest is to support liberal causes – such as birth control, abortion, same-sex marriage, euthanasia, climate change or health care reform – there would be nothing under the Court’s decision to prevent it from throwing its economic weight behind a campaign favoring those things, and they would do it in a New York minute. Corporate morality is in the bottom line.
More immediately, we will undoubtedly see an increase in the influence of corporations over our elected officials, particularly at the Federal level. Money is the mother’s milk of politics, and those who run for public office are always begging for more. It will be too tempting for politicians to resist bending to the view of corporations to get money. Giving corporations more economic clout over the political process will simply make persons running for office more pliable to the demands of Corporate America.
The individual American – regardless of his or her political views – was the big loser in the Supreme Court’s decision.
(Richard Mays, a Heber Springs attorney and environmentalist, offers a liberal viewpoint on politics and social issues in each Friday’s edition)
Heber Springs, Ark. —
