Sunday, January 24, 2010

The Citizen’s United Decision

In the quibble over whether corporations are persons – they are not – and whether as political or business entities they should not be entitled to full First Amendment rights, it has been forgotten how the Citizen’s United case arose.

In its decision, a lower court, averting to the McCain/Feingold and other restrictions, banned the publication of a DOCUMENTARY on Hillary Clinton that was to air prior to an election. The documentary, no less partisan than any created by Michael Moore, winner of the prestigious Palm D’Or award, was – no one will deny – political speech protected by the First Amendment.

In striking down the restrictive laws that banned the publication of the documentary, the Supreme Court reaffirmed the First Amendment’s protection of political speech. At a very basic level, the decision is a win for free speech rights. And those who have told us countless times that the First Amendment allows political speech that is offensive to some cannot plausibly argue that the Hillary documentary, banned by an earlier decision, was offensive to the good political tastes of Democrats, or that Hillary Clinton had been “swift boated” in the documentary by partisan Republicans.

The New York Times, itself a corporation, in despair over the decision, argued the court’s ruling was a “blow for democracy” that would enable corporations “to use their vast treasuries to overwhelm elections.”

Over at the Harford Courant, Colin McEnroe, who writes for a corporation and entertains people on a radio program associated with a different corporation, echoed the Time’s view: “See, I would have thought the floodgates were already open, but apparently Chevron and General Electric and AT&T have huge stinking ponds of even more money than they usually spend. The biggest danger from now on is that some candidates may get hurt by the huge sacks of money that will be thrown at all of them.”

The Supreme Court decision leaves intact laws dating from 1907 that prevent direct contributions to candidates. And the majority of corporations are not behemoths like, say, Lehman Brothers, frequent campaign contributors recently bailed out by the Bush and Obama administrations. Most corporations are small companies and non-profits. And the assumption that larger companies are not disposed to make contributions to Democrats is a mind-numbing myth.

Here in Connecticut, the former CEO of World Wrestling Entertainment Linda McMahon, now running for the U.S. Senate as a Republican, has come under fire for making political contributions to (Gasp!) Democrats. The number-one donor to President Barack Obama’s campaign was Goldman Sachs.

Rather than place the First Amendment on a Procrustean bed where political liberties are hacked off, is it not less damaging to the Republic to allow unrestricted political speech while requiring full disclosure -- so that citizens, rather than courts and legislatures, may be able to punish at the voting booth both contributors and politicians who accept tainted funds?

The notion that the free speech rights of corporations may be curtailed because corporations are not persons is the blindest of blind alleys. There is no corporation in the United States that does not contain people fully invested in their constitutional rights.

Corporations are groups of private individuals who have political and legal rights. The government should not feel free to violate the 4th amendment by raiding the offices of the local paper and seizing its computers on the pretext that news corporations are not individuals. Corporations have First Amendment rights. Individuals do not surrender their rights when they come together to act collectively, otherwise rights of assembly and common action would disinvest individuals of their imprescriptible constitutional rights.

States, newspapers, towns and political parties are co-operating entities akin to corporations. There is no practical difference between a corporation and a political party.

The whole of McCain/Feingold should be struck down as destructive to constitutional liberty, and there are questions that the anti-corporate demagogues should pause to answer: Why should George Soros be fully invested in his First Amendment rights, while documentary makers, artist co-operatives, the ACLU, National Public Radio and unions are stretched on a corporate procrustean bed and deprived of the full participation of their First Amendment right to free political speech?

Thanks to McCommas (see comments) a summay of the case is provided by the CATO Institute:


mccommas said...

Isn't it wonderful?! I have not read the decision yet but I am looking forward to it.

I wrote a paper about this case before it was decided of course. I take back every unkind word I ever said about Justice Kennedy!

You left out the part where the government guy said the FEC has the power to ban books if they were "express advocacy" or the "equivalent of express advocacy". You have to wonder if these people ever read the First Amendment at all. What do they think it means, I wonder!

I for one think its just great that third parties can come right out and say "Vote for Scott Brown" or "Vote Against Scott Brown". No more of this nonsense where they ask you to call the office of Senator X and tell him "bla bla bla".

Bradley Smith gave a great speech at a CATO policy forum. No one ever put it more clear for me.

Don Pesci said...

Thanks McCommas, I included it above. I hadn't seen the discussion. Its a beaut.