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First Amendment vindicated

Christie Pesavento | Tuesday, February 9, 2010

 What the President’s critics have labeled a shocking breech of decorum during his State of the Union Address, combined with Justice Samuel Alito’s mouthed disapproval while his colleagues sat stony-faced amidst lavish applause from congressional Democrats, set off a flurry of controversy that has drawn even more attention to the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission.

Why did this case create such a stir? Let’s begin with the background.
 
In 2008, a nonprofit conservative group known as Citizens United produced a documentary criticizing then-presidential candidate Hillary Clinton and sought to run commercials for the film. Unfortunately, a little something called the Bipartisan Campaign Reform Act of 2002 (also known as McCain-Feingold) stood in its way. The Act makes it illegal for corporations and unions from dipping into their general treasury funds for independent expenditures that are classified as “electioneering communication,” or speech that advocates for or against a candidate running for office 30 days before the primary elections. A district court ruled that the commercials violated the Act despite Citizen United’s claim that the documentary was nonpartisan and based solely on facts.
 
The organization appealed to the Supreme Court, and the case was argued two separate times, first in March of 2009 and again last August. Finally, on Jan. 21, the Court delivered its ruling, with the majority finding that McCain-Feingold’s restriction on expenditures was an unconstitutional encroachment on the right of corporations to speak freely in political campaigns.
 
The decision sent cheers through the ranks of conservative and libertarian circles and prompted ominous predictions of electoral Armageddon from liberals, including the Commander in Chief: 
 
“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”
 
This statement, made during the State of the Union Address, was what elicited the “not true” remark from Justice Alito. And for good reason.
 
For starters, the charge of overturning “a century of law” is a substantial exaggeration. The Court did reverse its 1990 decision in Austin v. Michigan Chamber of Commerce that upheld a ban on independent political expenditures by corporations, but the 1907 prohibition of direct political contributions remains untouched. In fact, the decision in Citizen’s United specifically criticizes Austin as “a significant departure from ancient First Amendment principles.” Indeed, Austin was the first decision in the Court’s history to uphold a restriction on independent political speech. So it was the twenty year old ruling that marked a significant reversal of past precedent, not Citizen’s United.
 
The president was also incorrect in stating that the ruling “opens the floodgates for special interests — including foreign corporations.” Aside from the patent hypocrisy of his attack on special interests when, as a candidate, Obama was positively swimming in special interest donations and decided against public funding of his campaign to avoid the spending limits it would have entailed, the allegation itself is a complete misrepresentation of the facts.  The section of Federal Election Commission law banning foreign nationals, including corporations, from contributing money to American elections remains on the books. Justice Kennedy even went out of his way to explicitly state, “We need not reach the question whether the government has a compelling interest in preventing foreign individuals or associations from influencing our nation’s political process.” In other words, the main issue at stake in Citizens United was whether corporate political speech deserves the same First Amendment rights as that of an individual, not whether foreign nationals should be able to interfere with elections in the United States.
 
Speaking of which, the claim that corporations are not covered by the First Amendment because they do not constitute individual persons is “short-sighted at best,” according to former Federal Election Commissioner Hans von Spakovsky. “Corporations, after all, are just collections of individuals, and the First Amendment protects their right to petition the government for redress of grievances.”
 
Moreover, the fear that those evil corporations will now be able to buy elections that many expressed after the ruling was released is largely unfounded, thanks in part to the fact that many corporations donate opportunistically rather than according to deeply-held political beliefs, hoping to gain the favor of whichever side is ultimately elected. In fact, data from OpenSecrets.org demonstrate that between 1998 and 2009, corporations overwhelmingly favored the Democratic Party. Perhaps Obama and co. should have turned down those donations in the name of fairness and equality.
 
The bottom line is that freedom of speech, especially the political kind, lies at the core of American democracy. Its denial bars one from participating fully in self-government, and its protection has remained a central component of Supreme Court doctrine for centuries. Fortunately, by striking down the limitations imposed on corporations by McCain-Feingold, the Court has vindicated the right of all Americans, including those associated through corporations, to full participation in our democratic system.
 
Christie Pesavento is a senior who is majoring in political science and sociology. She can be reached at cpesaven@nd.edu
The views expressed in this column are those of the author and not 
necessarily those of The Observer.