Corporate America

On January 21, the U.S. Supreme Court struck down parts of what is known as ‘campaign-finance law’ from its decision in the case Citizens United v. Federal Election Commission (FEC). The case was brought forth by a conservative activist group, Citizens United, in response to the FEC’s decision, under a law passed by Congress, to forcibly keep Citizens United from distributing a movie it had produced that called for the defeat of Hillary Clinton in the Democratic primaries.
The Court ruled that Congress violated the First Amendment by passing this law, and that the law was therefore null and void. This decision has provoked a barrage of responses from commentators and politicians, right up to President Barack Obama. These responses have mostly come in opposition to the ruling. Most of them, however, cannot be supported by the facts of the case and the principles of judicial review.

First, let us look at the complexities of the Supreme Court’s decision. The Supreme Court did not rule the law that bans corporations and unions from donating money to the campaign of a candidate for public office unconstitutional. Thus, the claims that the ruling will lead to a practice of corporations ‘buying’ a seat in Congress are completely unfounded.

The decision did rule the ban on ‘electioneering communications’ (the law defines ‘electioneering communications’ as any spoken or published material made public that is political by nature and mentions a candidate by name) that is in part funded by a corporation or union and made public within thirty days of a primary or sixty days of a general election unconstitutional. All questions of whether a form of speech or print falls under the category banned are, under the law, decided by the Federal Election Commission. This is the law that was ruled unconstitutional by the Court.

One claim that critics of the ruling have made is that it will result in ‘a new stampede of special interest money in our politics’, as the President said in a statement in response to the ruling. However, the potential practical implications of its rulings are no concern of the Court. The Court’s sole function is to resolve disputes over the interpretation of the Constitution — the judgment of a policy’s necessity does not constitute any aspect of the Court’s constitutional obligations.
While opponents of the Court’s decision deride it as an example of ‘legislating from the bench’, precisely the opposite is the case. It was a decision that affirmed the campaign-finance law’s constitutionality merely because it was ‘necessary’ for the preservation of democracy and would have been an act of legislative prerogative.

In other words, it is Congress’s job to worry about what is practically ‘necessary’, and not the Supreme Court’s. The Supreme Court must rule solely on the Constitutionality of any executive action or law.

The law the Court struck down three weeks ago was very clearly unconstitutional. The First Amendment to the Constitution states ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press’. Many commentators have claimed that the Court’s ruling, by protecting speech financed by corporations, depends on the endowment of corporations with the full rights of people under the Constitution as decided by the Supreme Court in the case Santa Clara County v. Southern Pacific Railroad in 1886. But it doesn’t matter whether corporations are treated under the Constitution as ‘people’ or not—the Constitution states that ‘Congress shall make no law abridging the freedom of speech, or of the press’, so Congress may not make a law that in any way abridges any kind of spoken or published form of expression.

But this analysis still begs the following question: did the law the Court strike down technically abridge the freedom of speech? One might claim that the law banned a certain use of money in certain situations, and that the ruling thus depends on equating the use of money to purchase advertising space or produce a movie with ‘speech’. But the law in question did not ban the financing of political speech by corporations and unions; it banned political speech that happened to be financed to any degree by a corporation or union.

The law, to apply it to the situation Citizen’s United brought before the Court, did not ban the use of corporate or union-donated money to produce ‘Hillary: The Movie’; rather, it banned the distribution of the movie after it had been produced. To ban the distribution of any expressive material at any time is to abridge the freedom of speech or the freedom of the press.

However one feels about corporate and union influence over the political process, it is undeniable, in my view, that the law struck down by the Supreme Court was in direct violation of the Constitution, and that the Supreme Court was therefore entirely correct in striking it down.