Did the Supreme court open the floodgates?

JK writes: In spite of their dislike of Wall Street and big corporate money, Libertarians and Republicans of Gallatin County who are fond of railing against federal government (i.e., Congress and the administration) interference in their lives and activist (read “liberal”) Supreme Court justices, have been deafeningly silent about the recent conservative controlled Supreme Court decision regarding campaign contributions by corporations. This decision overturned 100-plus years of precedents, which include a 1912 Montana law that banned political contributions by corporations, and, according to Justice Stevens, seven Supreme Court decisions. How activist can one get? By what stretch of the imagination could this have possibly been a “free speech” issue? Is the silence because special interests and big money really do coincide with the private longings of those on the right, and that the cry against Wall Street is really only political rhetoric? Or is it that the right can use the influence of big money to further its social agendas (see ad on CBS during the Super Bowl)? Sen. McCain now accepts the McCain-Feingold Act as negated. Unions may be allowed to contribute directly to political campaigns as well, but their resources are far outweighed by corporations’ megamoney. What this decision may mean, ultimately, is not a detour in the democratic electoral process, but the building of a new superhighway that favors rich corporations, special interests, lobbyists, and Wall Street: all at the expense of the common person. And, for those “originalists” among you (Justice Scalia, in particular), please note that the Constitution does not mention corporations as “persons”; in fact, it gives no rights to corporations at all. If this is not the Supreme Court legislating from the bench, I don’t know what is. ------------ 

I respond: Dear JK, I decided to answer your question about Citizens United v. FEC. Have you read the case, or do you have any background information regarding the real questions that were presented to the Supreme court? The reason I ask is because the nature of your letter suggests you obtained all your information from the mainstream media and other left-leaning sources. When I read the initial news reports I did not agree with the ruling. Unfortunately, the media presented the issue in a manner that suggested that the court opened the floodgates for corporate money to be donated to political candidates. Upon further investigation, this is not what happened at all. The organization Citizens United had produced a film that was highly critical of then-presidential candidate Hillary Clinton.

Because the release of the film coincided with the restrictive final period prior to the democratic primary prescribed by McCain-Feingold, a lower court ruled that the film was a political contribution and therefore subject to the prohibitions contained in McCain-Feingold. The questions presented to the Supreme court were: 

1. Whether challenges to the disclosure requirements imposed on "electioneering communications" by McCain-Feingold were resolved by the court challenge to McCain-Feingold (McConnell v. FEC). 

2. Whether McCain-Feingold's disclosure requirements impose an unconstitutional burden when applied to electioneering communications, because such communications are protected "political speech" and not regulable “campaign speech” per Buckley v. Valeo. 

3. Whether the law requires a clear plea for action to vote for or against a candidate. 4. Whether a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by a compendium book is to be treated as an advertisement, or whether the movie is not subject to regulation as an electioneering communication. 

So, the actual issue boils down to whether or not a film that was critical of a political candidate, but did not advocate a particular candidate, amounts to a political contribution. The court ruled that it was not. What this means is that the Court did not engage in judicial activism, they did not cave to big business money, and they did not grant "personhood" to corporations. Nor did they overturn 100 years of precedents (as if that is an automatically bad thing to do – see the Dred Scott decision, for example). 

They simply decided that a moviemaker is not forbidden to make a film critical of a political candidate. This is a quintessential free speech issue. With that said, I do not believe that corporations are persons or have constitutional rights. Corporations are legal constructs. Corporations can and should be forbidden to spend money on politics. The people who own corporations have free speech rights, however, and should be free to spend their personal money as they see fit without limit. I can picture you reading this with a horrified look on your face. But consider that all sorts of restrictions have been applied to campaign contributions, but it still costs millions to get elected president. According to http://blogs.wsj.com/washwire/2008/10/23/cost-of-2008-election-cycle-53-billion/ , the 2008 election cycle cost $5.3 billion, and the presidential election cost $1.6 billion, doubling the 2004 election. Big Money still somehow controls elections. 

The solution is not to try to control the flow of money in. The solution is to control the ability of elected officials to spend money. Legislators have too much power to fund pet projects, pay off contributors with contracts, and create gargantuan spending programs. The answer is to return government to its constitutional limits. If government has limited ability to spend, then there is no incentive to spend big on campaigns. Big money goes away. Corruption has limited effect. Sweetheart deals cannot be done. We need to accurately identify the problem before we can obtain a solution.