Nexus: Chapman's Journal of Law and Public Policy

The First Amendment 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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Cont. amend I.

Can we say that by limiting the amount one can spend to pursue their right is an infringement of it? Did the cases overturned by Citizens United actually prohibit corporate speech? Did those cases say, look MegaCorp, you cannot say this? Or did they merely impose a restriction on a means to an end?

It might be useful to look at the word abridge. Abridge defined is to reduce in scope. Scope is defined as the extent to, or application of. By my perception of these words, the current law did abridge their rights under the First Amendment. Would you agree that by limiting the amount of money one can spend on their speech reduces the scope of their speech? It seems to many, and more importantly the United States Supreme Court, that it does.

Bitterly divided on a 5-4 split, the US Supreme Court overturned a ban on corporate political spending on elections. Its decision did not affect the current limitations on corporations’ political campaign contributions. However, it did overrule the limits on corporate spending for electioneering communications.

The Supreme Court held the First Amendment has long been extended to corporations, giving them the same freedom as individuals. The court reasoned that the First Amendment “stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.” Furthermore, the current law imposes restrictions on speakers because they are a disfavored group. Is there a way to reconcile the two views? Is this anomalous to abridging speech because it is not what we want to hear?

It overruled the ban on spending that was “meant to prevent corporations from obtaining an unfair advantage in the political marketplace by using resources amassed in the economic marketplace.” The court rejected this rationale, holding instead that distinguishing speakers based on their advantages or disadvantages, is not sufficient to violate the constitution.

The government’s argument was that the ban helped to limit the corruption of democracy. The Supreme Court, with obvious confidence in our democracy, rejected this idea by saying, “speakers may have influence over or access to elected officials [but this] does not mean that those officials are corrupt.” The court continues to say that even if this decision might give the appearance of corruption, the American people will not lose faith in our democracy. Instead the court said any effort by “the Judiciary to decide which means of communications are to be preferred would raise questions as to the courts' own lawful authority.”

President Obama called it “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.”

Eight of the justices did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals. “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” But permit, is permissive. Must they disclose? Congress has yet to speak on the matter. What was shocking most of all, was its sweeping hand. When the case was first argued last March, it seemed a curiosity likely to be decided on narrow grounds. The court could have ruled that Citizens United was not the sort of group to which the McCain-Feingold law was meant to apply, or that the law did not mean to address 90-minute documentaries, or that video-on-demand technologies were not regulated by the law. Thursday’s decision rejected those alternatives.

The previous limit on spending does not prohibit corporations from creating ads and speaking freely about their political positions. It does, however, limit the amount of money they can spend on them, and possibly make the political arena more of a level playing field for all voices to be heard. Does putting a cap on electioneering communications really take away corporations’ rights or rather; does it ensure the rest of ours?

Furthermore, is it any better policy to say, you can’t say what you want unless you pay me enough? Shouldn’t corporations be freed of the shackles in which they compete to speak? Shouldn’t they be able to speak without having to pay for it? In late June MoveOn, a political advocacy and communications group, overwhelmingly approved a three-part "Fight Washington Corruption" pledge calling for (1) overturning the Court's decision through an amendment to the Constitution; (2) passing the Fair Elections Now Act in Congress, which incentivizes candidates to collect small donations by offering competitive public matching funds; and (3) enacting tough new laws cracking down on the revolving door between government officials and lobbyists.

How can one rectify corporations’ and citizens’ right to speech? How can both voices be heard? Is it just a matter of happenstance that only one will be? Was this really the framers’ intent? To have the elite run the show, yet once again? Interpreting the constitution is what the U.S. Supreme Court is known for. Surely, they could have devised a better solution than this? Or perhaps it is just another mean to an end? It seems that there is no way around the “reduction of the extent of” corporations’ right to political speech. If they can’t speak freely, then how can any American be guaranteed of their own right. In order to be guaranteed the rights of everyone else, we must tolerate the rights of others. We must just find a way to be heard.

Adam Liptak, Justices, 5-4, Reject Corporate Spending Limit, N.Y. Times, Jan. 21, 2010, at A1.