Category | Op Ed

Why SCOTUS critics have it wrong

Published on February 2, 2010 by Matthew Cole

Imagine for a moment that there is an important congressional election coming up and you, as a concerned citizen, wish to remain informed of election events and information about the candidates. Now imagine that the federal government issues a decree banning the publication of politically-themed books. Undeterred in your desire for information, you download an e-book onto your Amazon Kindle. Unfortunately for you, the imperial censors have also banned downloads of certain e-books due to their political content.

This scenario might seem like something from an Orwellian dystopia, but if it weren’t for the Supreme Court’s recent 5-4 decision in Citizens United v. Federal Election Commission, this scenario may very well have become a reality. Indeed, the first round of oral arguments before the Court included the delusional assertion by Deputy Solicitor General Malcolm Stewart that the Constitution allowed the federal government to ban the publication of books and the downloading of e-books or on-demand movies if such media contained anything that might construe to be political advocacy.

In this case the issue pressed by the government was the McCain-Feingold Act’s ban on corporate and union expenditures for the purpose of political advocacy. It is the word “corporate” that seems to provoke the most hysterical reactions from those with a Howard Zinn-like anti-business reflex. During his recent State of the Union speech, President Obama inserted the following: “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests - including foreign corporations - to spend without limit in our elections.” MSNBC talk show host Keith Olbermann blasted the decision with more heated rhetoric, claiming Citizens United to be a greater affront to America than the infamous Dred Scott decision.

The fears of such critics border on hyperbole. In his book “Unfree Speech: The Folly of Campaign Finance Reform,” former Federal Election Comminsion Chairman Bradley Smith says extensive research data shows that there is little evidence suggesting that the presence of corporate money in an election has any corrupting effect. In fact, 28 states currently allow corporate expenditures for the purpose of political advocacy. There is no evidence suggesting that these states, which include the relatively prosperous Utah and Virginia, are in any way misgoverned because of corporate expenditures.

This case should be viewed primarily as a free speech issue. Critics commonly make the objection that Santa Clara County v. Southern Pacific Railroad Company, which declared corporations to be legal persons, was wrongly decided. That’s fair enough. Just show me where in the language of the First Amendment does the prohibition against the infringement of free speech by the federal government necessitates the personhood of the speaking party. You won’t find it there. That’s because the First Amendment did not grant any rights; it simply prohibited the government from restricting these pre-existing rights.

In some instances, the government may restrict the time, place, or manner of speech. The ability of the government to restrict the content of speech only exists in rare and extreme circumstances. What the government may not do is restrict the viewpoint expressed in speech. Let me give an example of this distinction. The federal government can prohibit corporations from sending information by mail across state lines. What they may not do is selectively favor certain viewpoints that may be expressed in that mail. The government may not say that non-political viewpoints (e.g., “buy our stuff”) are allowed, but political viewpoints are prohibited.