The Supreme Court has restored a vital part of the 1st Amendment — a part Congress and some prior court decisions had tried to deny.
A 5-to-4 majority, led by Justice Anthony Kennedy, found that a major part of the federal campaign-finance legal superstructure unconstitutionally infringed on the right of corporations to speak in political campaigns. The left usually agrees that political speech is a fundamental part of the 1st Amendment right to speak, but this time it blew a gasket, even though that right lies at the heart of the court’s decision. Heaven forbid that the court allow the wrong people to spend money to engage in political speech that might influence political campaigns.
The always-temperate Rep. Alan Grayson (D.-Fla.) complained that the court’s decision was the worst since Dred Scott, the 1857 decision which confirmed slavery.
Contrary to the complaints of the critics, the court’s decision is a core reading of the First Amendment. It levels a playing field that was statutorily tilted toward certain preferred actors in the mainstream media, who were exempted from this corporate prohibition even though they are big, for-profit corporations. It unleashes a right to speak that all corporations and unions can use if they choose. The court also swept away much of an extraordinarily tangled and confusing legal thicket of regulations and interpretations that created not only uncertainty, but also such a chilling burden that the court labeled it the equivalent of a prior restraint on speech.
The notion that corporations are not covered by the First Amendment because they are not “persons” is short-sighted at best. Corporations, after all, are just collections of individuals, and the Firstt Amendment protects their right to petition the government for redress of grievances.
Likewise, as Justice Antonin Scalia explained in a separate opinion, nobody sees any problem with the notion that corporations enjoy the freedom of the press guaranteed by the First Amendment. Nothing in the text justifies giving the right to speak to some corporations but not to others. As the court explained, the federal law’s prohibition extended to all corporations, except those that own newspapers or other media outlets.
So, while News Corp., the New York Times, and other media outlets were free to spend corporate funds to support or attack a candidate, all others couldn’t. That might explain why the Washington Post ran an editorial on the decision decrying the “danger” of letting corporations use their “wealth” to “wield undue influence in political campaigns.” Of course, the Post never once acknowledged that it did not have to comply with that law even though the Washington Post Co. not only wields extraordinary “influence in political campaigns” but also had almost $4.5 billion in operating revenue in 2008.
Those silenced by this federal prohibition were not just the for-profit entities some are now screaming about. Nonprofit advocacy groups like the National Rifle Association, the Sierra Club, the NAACP, and the American Civil Liberties Union also had to hold their tongues—unless they went through the burdensome and expensive process of forming a political action committee, with all of the accompanying limitations and complexities of the applicable law.
The law did not just prohibit some speech, it made exercising the right to speak both difficult and fraught with peril. As the court noted, pointing to a friend-of-the-court brief by eight former commissioners of the Federal Election Commission (including one of your authors), the cumbersome campaign rules apply to 33 kinds of political speech by “71 distinct entities.” Those entities had to parse 568 pages of regulations, 1,278 pages of explanation and justification for those regulations, and 1,771 advisory opinions to know whether they could exercise a core constitutional right.
Finally, before anyone could know whether a communication was the functional equivalent of prohibited or restricted political advocacy, he had to guess how the FEC would apply its two-part, 11-factor balancing test. The prospective speaker who guessed wrong was subject to potential civil and criminal liability.
As Chief Justice John Roberts pointedly said, the government was urging the court to embrace a theory of the First Amendment that “would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet and virtually any other medium that corporations and unions might find useful in expressing their views on matter of public concern.” Nothing would stop that theory from reaching, and prohibiting, newspaper editorials that support or oppose candidates for office.
Somehow, we doubt that, if the media corporations were not specifically exempted, the New York Times and the Washington Post would now be warning that the free political speech of corporations threatens our democracy. As Justice Scalia concluded, to “exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”