A Victory for the First Amendment

When government seeks to use its full power, including the criminal
law, to command where a person may get his or her information or what
distrusted source he or she may not hear, it uses censorship to control
thought. This is unlawful. The First Amendment confirms the freedom
to think for ourselves.

- Justice Anthony Kennedy

Yesterday the US Supreme Court upheld free speech under the First Amendment by striking down a law that prohibits corporations and unions from running political advertisements at election time. The United States government may not muzzle political speech anytime, anywhere for any reason. Ever.

The decision undermined the McCain-Feingold law, which sought to control special interest advocacy spending during political campaigns. Justice Anthony Kennedy, speaking for the majority, proclaimed in no uncertain terms that “the censorship we now confront is vast in reach.”

Not only did the majority declare censorship of corporate speech to be inherently unconstitutional, it also warned of the dangerous precedent of allowing government to silence corporations. Permitting such law to stand, stated Justice Kennedy, “could ban potential speech of media corporations.”

Kennedy also spoke to the irrationality of the prohibitions on corporate and union free speech. He noted that under the rules that the majority of the Court found unconstitutional, millions of corporations, including small for-profit and non-profit corporations, are silenced through government coercion, while wealthy individuals and unincorporated associations can spend unlimited amounts in support of candidates and legislation.

In reaction to the ruling, Senator John McCain said he was “disappointed by the decision.”

The President’s condemnation was more full throated. Obama declared:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.

In his stampede the President made no mention of the pharmaceutical lobby, which he corralled into running millions of dollars in political advertising for his healthcare plan (whatever it turns out to be) in exchange for the government agreeing not to use its massive buying power to negotiate lower drug prices. Apparently corporate interests that oppose Obama drown out the voice of the people. Those that can be bought off by him, don’t.

As the pharmaceutical industry deal with the White House suggests, corporate money courses through American politics. McCain-Feingold did not even begin to address the issue of corruption in our political system, while at the same time it compromised the First Amendment. McCain-Feingold merely gave politicians something to vote for in order to appear as reformers. The cause of reform is better off without it, and the First Amendment rights of Americans are better protected.

Justice Kennedy’s opinion suggests the way forward to clean up the American political system. First, the ruling declares that we are free to regulate campaign contributions to politicians. Why not make corporate and union political-action-committee contributions to candidates illegal? Any attempt at a direct corporate or union contribution to a candidate could be considered a bribe and a felony. Any threat to run ads against a candidate for legislating the wrong way could be considered an attempted extortion. Sever the direct link between legislators and economically self-interested special interests.

If corporations want to run ads on their own, that’s fine, but regulations must be passed to identify the true sponsors of the ads. The Supreme Court has left lawful space for this kind of disclosure requirement.

Publicly fund political campaigns, which could largely take corporate and union money out of the process. Kennedy writes, “it is our law and our tradition that more speech, not less, is the governing rule.” Indeed, less speech protects incumbents, who in a normal election year will be re-elected at a rate of over 95% in the US House of Representatives.

Here then is the reason that special interests are so powerful and that politicians are so opposed to meaningful reform. Special interests donate to incumbents because incumbents win re-election. Incumbents win re-election because they spend much of their time in office shaking down special interests for campaign cash.

To have a chance at winning, a challenger doesn’t necessarily need to spend more money on a campaign than an incumbent, but he or she does require a critical minimum amount of money to be heard. Once that threshold is reached, political races become competitive. This could happen everywhere with public financing of political campaigns, and thus go a long way to not only undermining self-interested special interests, but also restoring democracy.