Court can’t make elections any worse

A group of local citizens plans to mark the anniversary of Citizens United with a protest on the Gettysburg square noon Saturday. I wrote this column Jan. 30, 2010, shortly after the Citizens United decision, and stand by it, with a couple of caveats discussed here.

There’s been a lot of left-wing hand wringing over the Supreme Court decision a few days ago that struck down restrictions on corporate campaign financing.

“With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century,” opined The New York Times in an editorial. “If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.”

Gee, I hate to break it to the Times, but that seems like pretty much the way things already are. The dirty dollars of lobbyists have already corrupted our republic beyond all recognition.

So I don’t expect the court’s decision in Citizens United v. Federal Election Commission to make it all that much worse. How could it?

And the court’s decision also overturns a 20-year-old ruling that undercuts the fundamental principles of the First Amendment, if not the politically corrupting discourse of political-action committees it was intended to limit.

That case, the landmark, albeit obscure decision in Austin v. Michigan Chamber of Commerce, upheld a Michigan law that forbid the Chamber from buying an ad in support of a candidate who opposed the campaign law.

The court’s liberals, in an equally narrow 5-4 decision by Justice Thurgood Marshall, ruled that such a law didn’t violate the First Amendment because the government had a compelling interest in free and fair elections, and the speech of corporations could exert “undue influence” on the political process.

That might not apply to the press or legitimate nonprofits, the court hastened to add, and illegitimate attempts to silence such expression could be dealt with by judges on a case-by-case basis.

In light of such overreaching by activist judges, the critics of the case were right to be worried about what speech the justices might next decide exerted “undue influence. Rush Limbaugh? The NRA or the ACLU?

So I’m not sorry to see the Austin decision tossed to the dustbin of bad judicial decisions. But Citizens United , which dealt with whether federal election laws applied to a 90-minute “documentary” highly-critical of then-presidential candidate Hillary Clinton, could have been decided in favor of free speech on narrow constitutional ground. Any law that makes the right to speak depend on the identity of the speaker or the effectiveness of his words ought to be struck down in a single sentence.

But the court’s conservatives reached onto dangerous legal terrain themselves in their efforts to confer the mantle of personhood on corporations. As far back as 1819, Chief Justice John Marshall wrote: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”

Nearly 200 years later, we’re suddenly not so sure. Writing for the dissenters in Citizens United , Justice John Paul Stevens was only half kidding when he observed, “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”

But that’s a problem for another day. And besides, as I said, it really remains to be seen if the decision will make campaigns any worse.

“I think the decision was really a bump in the road,” says media consultant Robert Kolt, the Democratic candidate in the 1985 election the Michigan Chamber wanted to oppose. “Its interesting that money always finds a way to speak, and that’s essentially what happened. … Since the Austin case, corporations and organizations have just found a way to comply with the law, and spend money on things they think are important.”

Bob LaBrandt, a senior vice president with the Michigan Chamber of Commerce, agrees with his one-time foe. He says he thinks corporations have already figured out how to spend as much money on electioneering as they are willing to spend.

“What’s going to change?” he asks. “Probably in Michigan not much.”

That’s the real bad news to come out of Citizens United .

The woe on the left is matched by elation on the right, which speaks of the decision in glowing terms as a victory for free speech. Corporations are more likely to fund Republican candidates and the unions that are also supposed to benefit from the court’s decision don’t have the clout or the money they once had.

Really, the case is an opportunity for Congress to revisit campaign reform in search of a more meaningful fix. Sadly, though, that’s not likely to happen in a political environment where raw politics underlies the high-sounding rhetoric on both sides.

Still, David Wu, a congressman from Oregon, proposes a $50 refundable tax credit for citizens making political contributions. That would give individual citizens the economic clout to make their voices heard too, by donating to the political causes that really matter to them, not the corporations.

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education,” Justice Louis Brandeis wrote nearly a century ago, “the remedy to be applied is more speech, not enforced silence.”

That’s an idea people of every political persuasion – at least the real flesh-and-blood ones – should be able to agree on.