Today the Supreme Court takes an unprecedented return to a topic it has danced around for decades — free speech and who can spend money to buy it and when.
Using the case of “Hillary the Movie,” the court will look at earlier rulings that upheld aspects the McCain-Feingold campaign finance law, which prohibits corporations and unions from spending money prior to primary and general federal elections to influence the election.
During the 2008 primary Citizens United was barred from airing on television an anti-Hillary Clinton movie. It was too much like a 90-minute commercial, the courts ruled.
Many of the best arguments for both sides were aired in a New York Times editorial Monday and a Wall Street Journal column Tuesday.
The Times gamely came down on the side of precedent.
“The court usually shows great respect for its own precedents, a point Chief Justice John Roberts made at his confirmation hearings. Now the court appears ready, without any particular need, to overturn important precedents and decades of federal and state law,” the Times said.
Weren’t Plessy and Dred Scott precedents?
But the Times insists, “Corporations would have an enormous say in who wins federal elections. They would be able to use this influence to obtain subsidies, stimulus money and tax loopholes and to undo protections for investors, workers and consumers.”
It is as if the substance of the message counts for nothing at the polls. Votes are chattel to bought and paid for. If that is the case, democracy is a sham.
At The Wall Street Journal, attorney Theodore B. Olson countered with an argument a bit stronger than precedent. He goes back to the constitutional prohibition against Congress making any law abridging freedom of speech.
“In crafting McCain-Feingold, Congress acted without proof that such expenditures have any distorting effect on elections,” he writes. “And it responded to a nonproblem with a sledgehammer rather than a scalpel.”
He also noted the minor loophole granted to the media in McCain-Feingold. This includes NBC, owned by GE; ABC, owned by Disney; and the corporations that own all the major newspapers, including The Wall Street Journal and The New York Times.
Olson rightly notes this case is less about a corporation’s right to speak, but more about our right to hear all the pertinent arguments at election time — “it is about our right to hear those voices and to judge for ourselves who has the soundest message.”