Money and free speech

The Supreme Court telegraphed that a new expansion of the First Amendment right to free campaign speech may be under consideration when it scheduled an unusual re-argument of a previously heard case for Sept. 9. At issue will be whether to overturn two previous rulings that limit corporate spending in elections.

In the first, the court in 1990 upheld a state law barring corporations from using their "immense aggregations of wealth" to buy ads to oppose or endorse a candidate. The second came in 2003, when the court narrowly upheld the bulk of the McCain-Feingold campaign finance restrictions by a 5-4 vote.

Now comes the case growing out of last year's "Hillary: The Movie," intended for viewing last year, and possibly for broadcast on TV, by the small nonprofit group Citizens United. But the film got tied up in a legal battle over whether the federal laws regulating corporation-funded "electioneering communications" applied. The Federal Election Commission decided "Hillary: The Movie" was covered by the law. This limited how it could be shown, and it meant Citizens United had to disclose its donors. The Supreme Court agreed to hear an appeal.

At one point as the case was being argued in March, the lawyer defending the FEC was asked whether Congress could ban a corporate-funded book that attacked a particular candidate during an election year.

The FEC lawyer said it could. "That's pretty incredible," replied Justice Samuel Alito. Indeed.

In June, rather than decide whether the election laws applied to the anti-Hillary Clinton movie, the justices announced they would hear a special argument this fall on whether to overturn the precedents that limit election spending by corporations.

Advocates of campaign funding restrictions are bleating like sheep. "Banks like Citicorp, investment firms like Merrill Lynch and insurance companies like AIG would be free to spend hundreds of millions of dollars of their corporate wealth to directly support the election of federal officeholders," Fred Wertheimer, president of the nonprofit Democracy 21, complained to the Los Angeles Times.

But about half the states, including California and Illinois, permit corporations to spend freely in state races, and few corporations have chosen to invest large sums in those contests, responds Bradley Smith, a law professor at Capital University in Ohio and a former chairman of the FEC.

Those who wish to uphold the spending restrictions -- including Obama administration Solicitor General Elena Kagan -- are at pains to point out corporations aren't real people. Corporations are "individuals" only as a legal fiction, they argue.

All true. One wonders if these folks would really like to see that changed. When the founder of a large enterprise dies, would he prefer to see his operations broken up and sold to pay death taxes, leaving all the outfit's employees in doubt about whether they'll still have jobs?

The argument is a red herring, anyway. The boards of directors that allocate corporate funds are certainly human beings with First Amendment rights. Besides, are we really to believe those who foolishly hope to "take the money out of politics" (without sharply limiting the scope of government meddling -- the real solution) wouldn't also love to bar wealthy individuals from spending vast sums to sway elections? How is it more evil for groups of people to pool their funds by joining, say, AARP or the NRA to gain the same kind of electoral clout?

Major change should generally be approached with caution. But free speech -- particularly as it pertains to politics and elections -- is really nothing new for America. As a matter of fact, it's vital.

Any member of Congress who wishes to stop big corporations from attempting to protect themselves from government meddling by getting involved in federal elections -- including the placement of paid advertising -- has the solution as close as the nearest microphone. It goes like this:

"As much as I'd like to please some constituents who would like to see us meddle in the free market for (insert name of product or service here), I can find no authorization to do so in the Constitution which we have all sworn to 'protect and defend.' I must therefore move that the bill before us be taken out to the nearest park and shot, so that all the lobbyists waiting back in my office to bribe me to either support or oppose it can put their money away and go home. I would now ask at least half the other members to so vote, thus joining me in 'taking the money out of politics.' "