Blame the Bill of Rights, not the Roberts Court, for allowing corporations undue influence on elections

 

Millions of Americans, especially on the Left, are scornful of the ruling of the Supreme Court in 2010 regarding Citizens United v. Federal Election Commission. In that ruling the Court overturned the provision of McCain-Feingold barring corporations and unions from paying for political ads made independently of candidate campaigns.

The ruling opened the door to unlimited expenditures by corporations and unions on behalf of candidates for office. It’s opened the floodgates to anonymous negative ads, and the Left is in high dudgeon.They have mischaracterized the Court’s ruling as “corporations are people and have the rights of people.” This piece of fiction has been enshrined in the dogma of the Left by Jon Stewart, Stephen Colbert, and Rachel Maddow.

What nonsense!


As much as one may hate the result of the Court’s ruling, one can’t get beyond the Court’s reasoning: The First Amendment to the Constitution is pretty straightforward:

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; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In a 1959 ruling, Justice Hugo Black wrote, concurring with an opinion that overturned an obscenity conviction, that the First Amendment leaves no room for evasion:

That Amendment provides, in simple words, that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” I read “no law . . . abridging” to mean no law abridging.

The Roberts Court reached the same unavoidable conclusion in 2010. Not because they’re conservative, but because that’s what our Bill of Rights demands. Four Justices disagreed because of the likely pernicious effect on our politics. I too decry the effect of Citizens United. But that’s the Constitution that all our government officials are sworn to defend.

Americans may amend it but we may not ignore it.

 

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7 Responses to “Blame the Bill of Rights, not the Roberts Court, for allowing corporations undue influence on elections”

  1. Jack Marshall Says:

    Bravo, Bob. I’ve been arguing myself hoarse about this—it is an example of unintended consequences for sure, but the critics on the left—and I’d include the SCOTUS minority on Citizens United here—embarrass themselves.

    When, in the oral argument of that case, then Solicitor General Elena Kagan agreed that a book funded by a corporation could be banned under the election laws. I knew what the result of the case would be. Both Justices Douglas and Black heralded First Amendment absolutism, and we are better and freer for it.;

  2. Ethics Bob Says:

    Wow, I never got a “Bravo” before. And from a lawyer, yet.

    I can’t understand the four libs on the Court, or all the people who object to the decision. Sometimes right is just right, even if you don’t like it.

  3. janpchapman Says:

    The court did not call corporations people, but it is my understanding that they based their decision on the concept of “corporate personhood,” which is why, I think, everyone’s confused. Thanks for clearing this up for me. And there are already people and municipalities working on it:

    http://motherjones.com/politics/2011/12/citizens-united-amendment-repeal-tom-udall

    • Ethics Bob Says:

      I have to figure that corporate personhood is a fiction of the Left. The Mother Jones article you linked to distorts the Court’s opinion. Here’s the operative sentence from the opinion:
      “(a) Although the First Amendment provides that “Congress shall make no law … abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.”
      The opinion makes no mention of corporate personhood, nor does it anywhere that I can find discuss whether a corporation is or is not a person.
      You can easily read the whole opinion at http://www.law.cornell.edu/supct/html/08-205.ZS.html
      I recommend it.

  4. janpchapman Says:

    Thanks–I’ll give it my best shot.

  5. janpchapman Says:

    I read it and didn’t really understand it, so I am embarrassed to say I went to Wikipedia. My conclusion from that discussion is that perhaps the Left should be more upset about money being considered the same as speech, and that corporations can use money (and, in fact, other people’s money who may not agree with them) to influence elections. Is that closer?

    • Ethics Bob Says:

      I think it’s even simpler: The Left (including me) is unhappy about unbridled corporate spending. But the Court was simply following the mandate of the First Amendment: Congress shall make no law abridging freedom of speech. No law means no law.

      The First Amendment restricts the Congress’s ability to pass laws. So McCain-Feingold, which limited corporate activity violated the First Amendment.

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