By Bob Hall, Democracy North Carolina
Talk about "judicial activism"! Through a series of remarkably aggressive procedures, a majority on the US Supreme Court seems determined to give new powers, even personal traits, to inanimate entities that amass money through commercial transactions, namely corporations. The Court could have kept the focus of the Citizens United case on whether the group's video about Hillary Clinton should be subject to the McCain-Feingold federal law that regulates electioneering through the broadcast media. It could have, for example, ruled that the video was provided to viewers at their request via the Internet, not widely pushed onto them through the airwaves.
But the Court took a different route, introducing on its own new Constitutional issues about the political powers of corporations not argued by the appellant and not buttressed with a robust factual record from a lower court. Citizens United used funds from corporations to finance its video; corporations can't vote or be put in jail, but they can live "in perpetuity" and shield individuals from legal liability. Why should they have the political "free speech" rights guaranteed for "we the people," rather than more narrow "commercial speech" rights developed through centuries of litigation? Individual stockholders and employees can band together into political action committees and, using their personal money, exert influence on the political process; that's far different than allowing the CEO of Mega-Firm to write checks from the corporate treasury to candidates.
Various news reports about the justices' arguments indicate that the Court majority is ready to overturn state and federal laws, as well as past Supreme Court rulings, which protected the free flow of ideas among individuals in the political marketplace from being overwhelmed by concentrations of wealth amassed in the commercial marketplace by corporations. If the Court makes such a regrettable ruling, it will be a green light that encourages wealthy private interests with a narrow agenda to work even harder to dominate public elections.
The current Court's hostility to regulating the flow of money in elections leaves the public with few avenues to protect candidates who don't have access to wealth or who want to focus on public service rather than fundraising. As Chase Foster of NC Voters for Clean Elections points out, offering candidates a way to access public financing may be the only viable option left after such a ruling by the Supreme Court.
The oral arguments before the Supreme Court on September 9, 2009 are at:
News analysis at: http://electionlawblog.org/archives/014401.html
Bob Hall is the executive director of Democracy North Carolina, a nonpartisan organization that advocates for campaign finance reform. He is the former research director at the Institute for Southern Studies, publisher of Facing South.