Commentary: Corporate secrecy, not spending is Citizen United's biggest problem

The Kansas City StarJune 23, 2012 

The Kansas City Council approved a resolution on June 14 denouncing the U.S. Supreme Court’s decision in the infamous Citizens United campaign finance case.

“Only human beings, not corporations, are endowed with constitutional rights,” the resolution read.

Let’s pause to contemplate the irony of the council’s statement. Kansas City itself isn’t a human being, is it? Instead, it’s “a body politic and corporate,” according to its charter. By passing the resolution, the City Council as a group exercised the very free-speech rights it wants to deny to other groups.

Defending the Citizens United decision is a difficult job. It’s hard to imagine a more unpopular Supreme Court opinion; perhaps Dred Scott or Plessy v. Ferguson come close. Democrats, independents, and even some Republicans still mock the court’s opinion.

But mockery is easy when a decision is as misunderstood as Citizens United.

Here’s what Justice Anthony Kennedy actually wrote for the majority in the case: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Note the phrase “associations of citizens.” What Kennedy and the court said was Americans don’t surrender their free speech rights simply because they decide to speak as a group rather than as individuals.

And it could hardly be otherwise. Groups and associations speak collectively all the time — corporations, sure, but unions, churches, media, and (yes) even cities take public positions.

Ban corporations from political speech? The League of Women Voters is a corporation. So is the Sierra Club, Missouri Right to Life, and the parent of The Kansas City Star. All could see their free-speech rights jeopardized if “associations of citizens” lose constitutional protection.

Some critics of Citizens United understand this, but complain the opinion “opened the floodgates” to political spending. But those floodgates were open long before the opinion: Barack Obama raised $800 million in 2008.

Those critics also forget the second part of Kennedy’s opinion, which said laws requiring disclosure of corporate spending were constitutional.

Last year a group supporting repeal of Kansas City’s earnings tax raised more than $500,000, virtually all of it from a shadowy non-profit “social welfare” corporation whose contributors were never revealed. Similar secret corporations are pouring millions into campaigns this year — secret not because of Citizens United, but because of tax law loopholes.

They have a right to speak, the court said, but we have a right to know who they are.

The problem is corporate secrecy, not corporate money. We might be better served if Citizens United critics focused on that, instead of trying to limit access to the First Amendment.

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