The Supreme Court decision
Thu January 21, 2010 4:45 pm

The argument of the majority is that current law allows the government, in the form of the Federal Election Commission, to penalize certain kinds of political speech, and by doing so, Congress has violated the portion of the First Amendment that states, "Congress shall make no law abridging the freedom of speech...." I make my living thanks to the First Amendment, and I generally applaud court decisions that upholds its prohibition. But today's case is a perversion of the First Amendment. It relies on prior holdings that corporations are persons under the Fourteenth Amendment and reaffirms "the First Amendment principle that the Government lacks the power to restrict political speech based on the speaker’s corporate identity." and confers upon them the ability to spend money on behalf of individual candidates. The trouble is, of course, that all persons are not created equal where money is involved, and Mr. Oil Company and Mr. Pharmaceutical Company have vast resources that can be employed on their behalf compared to, say, Mr. Perry and Mrs. Hutchison. Nothing other than the individual ideologies of the majority compelled this decision. Had the majority chosen to do so, they could have distinguished corporate political speech from individual political speech.

The decision will have a vast, if not transforming, impact on American politics. I spoke with UT law professor David Anderson, who is Texas Monthly's attorney on media law issues, and he said, "This is the end of politics as we know it, the end of democracy as we know it." There is no reversing it, unless a vacancy occurs on the majority and another case reaches the Court. For the present, the majority will deny a motion for rehearing. Even if Congress were to propose a constitutional amendment, corporate money could overwhelm the campaign. More likely, there would never be any campaign, because members of Congress would quake in fear of a flood tide of money washing away their prospects for reelection. It may turn out that the real legacy of George W. Bush is not the Iraq war, nor the endless recession, but the enabling of a cynical Supreme Court majority that empowered corporate domination of American politics. We are all powerless now -- the parties, the politicians, the voters, the media.

One argument that might be used against the majority's reasoning is that corporations already have a voice -- their PACs. The majority rejected that argument: "The prohibition on corporate independent expenditures is an outright ban on speech backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak."

The only restraint on corporate spending may be the Sarbanes-Oxley Act, which carries sanctions for corporate spending that does not benefit shareholders. Large political contributions will not escape scrutiny. Still, that is scant comfort compared to the power that corporations now have to influence elections.

But what about the concern that the expenditures of large amounts of money might lead to corruption? This does not trouble the majority:

"The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt....Favoritism and influence are not...avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies." This is true. What the majority continually overlooks is that they have opened the floodgates to expenditures of unprecented size, which ordinary citizens seeking office will not be able to combat.

Finally, the majority reaches a breathtaking conclusion without offering a scintilla of evidence in support:

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. This is one of the dumbest pronouncements I have ever seen in a Supreme Court decisions.

Maybe we just ought to cut out the middleman--the voter--and just put Senate and House seats up for auction on e-bay.

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