My friend and fellow Salvatori Fellow Brad Smith (former Chair of the Federal Elections Committee) has a WSJ op-ed on this week's SCOTUS decision in Citizen United v. FEC. Money quotes (very weak pun intended):
To truly appreciate the stakes in Citizens United, one must remember the government's legal position in the case. Implicit in its briefs but laid bare at oral argument, the government maintained that the Constitution allows the government to ban distribution of books over Amazon's Kindle; to prohibit a union from hiring a writer to author a book titled, "Why Working Americans Should Support the Obama Agenda"; and to prohibit Simon & Schuster from publishing, or Barnes & Noble from selling, a book containing even one line of advocacy for or against a candidate for public office. As David Barry would say, "I am not making this up."
The Court said "no," and the only shocking thing about the decision is that the four liberal justices said "yes." Hopefully, this ruling marks an end to 20 years of jurisprudence in which the Court has provided less protection to core political speech than it has to Internet pornography, the transmission of stolen information, flag burning, commercial advertising, topless dancing, and burning a cross outside an African-American church.
Unfortunately, some in Congress are using this decision to push for a government takeover of political campaigns through the misnamed "Fair Elections Now Act," which has over 100 sponsors (all but three of them Democrats) in the House. This legislation would use tax dollars to fund congressional campaigns. ...
The next time you download a book on Kindle, buy a Michael Moore screed at Barnes & Noble, or order up a political movie from video on demand, remember that it is the Supreme Court's decision in Citizens United that guarantees you the right to do so.
Smith goes on to tackle some very interesting corporate governance aspects of the case that may be of special interest to regular readers of this blog:
The dissenting justices in Citizens United see corporations as organizations in which people are trapped. They bemoan the allegedly lost rights of shareholders who may not personally support the candidates a corporation might choose to support. The justices who joined Anthony Kennedy's majority opinion, on the other hand, regard this as no different than any other question of corporate governance.In general, one expects corporations to spend campaign finance dollars in ways that increase their profits. So why should shareholders be expected to object?
Corporations frequently take action that some shareholders do not like, including, for example, making charitable contributions. Stockholders are free to leave the corporation if their disagreements become too strong. Meanwhile, why should the majority be prohibited from voicing their views as a corporate enterprise?
On the other hand, we know that unions often use their campaign finance dollars in ways that many of members find objectionable. As the WSJ reported, for example:
Republican Scott Brown's victory in the Massachusetts Senate race was lifted by strong support from union households, in a sign of trouble for President Barack Obama and Democrats who are counting on union support in the 2010 midterm elections.
A poll conducted on behalf of the AFL-CIO found that 49% of Massachusetts union households supported Mr. Brown in Tuesday's voting, while 46% supported Democrat Martha Coakley. The poll conducted by Hart Research Associates surveyed 810 voters.
The case for allowing union members to opt out of having their dues used for political expenditures thus has long seemed far more plausible than that for allowing shareholders to opt out of corporate political expenditures.
