The Supreme Court yesterday confronted a fact in constitutional law that has been hard to justify: How is it that the First Amendment protects obscene speech, nude dancing and talk radio — but permits Congress to shut down independent political messages from corporations and labor unions? Why do those groups get second-class status when politics, rather than, say, simulated child porn, is the topic?
In the Citizens United case, Justice Anthony Kennedy, writing for a five-justice majority, couldn’t be clearer: The federal ban on such independent expenditures is unconstitutional on its face: “Speech restrictions based on the identity of the speaker are all too often simply a means to control content.”
In fact, the sorry history of campaign-finance laws reveals just such intentions. The first expenditure ban became law as part of the Taft-Hartley Act in 1947. Republicans, then dominating Congress, aimed the ban squarely at unions. Labor challenged the law, but, unfortunately the court of that day was unwilling to squarely apply the Constitution.
Because the law remained on the books, supporters of the ban will now complain that Citizens United overturns stable precedent. In fact, the only possibly relevant high-court decision (in Austin v. Michigan Chamber of Commerce) was itself a controversial departure from settled First Amendment principles.
And, as Chief Justice John Roberts’ concurrence points out, if a precedent conflicts with the Constitution, it is the court’s precedent, not the Constitution, that must yield.
What impact will the ruling have? Labor unions, which are inherently “political” in ways corporations are not, will be well positioned to take advantage of this new freedom. It will be important for oversight of labor management and finances to keep up with these changes, to protect non-union workers’ fees and the interests of all workers in the sound management of collective-bargaining representatives.
Most critics, however, fear the expanded role for corporations. In fact, it’s unlikely that national corporations with broad consumer bases will jeopardize consumer goodwill by advertising for a candidate in a controversial race. Rather, they’ll focus their resources on soft-focus, feel-good messages about family, the environment or ethics, much as some do today. (Nonprofits like Citizens United are born to raise cain on political issues, and should do so consistent with whatever tax restrictions they face.)
And to pretend that corporate money wasn’t being used indirectly before is naive — now, at least, the people have a greater chance of understanding corporate support, unmasked.
Justice John Paul Stevens’ dissent railed that the “ruling threatens to undermine the integrity of elected institutions across the nation.” Nonsense: Almost half of the states today allow corporate funding for independent expenditures.
Idaho, Nevada and New Hampshire all allow corporate expenditures; their neighbors Montana, Arizona and Massachusetts don’t. If corporate independent spending is itself a threat, we’d see clear differences in the health of these democracies.
Citizens United will change the political landscape, and for the good. Let corporations and unions move beyond talking to Congress on the Hill to talking to the American people about what’s best for our country and whom we should choose to lead us there.
Allison Hayward is an assistant professor of law at George Mason University and a board member at the Center for Competitive Politics. She filed an amicus brief in the Citizens United case.