Opinion

Commentary: Elections, politics and corporate agendas

No, there aren't many occasions when members of the U.S. Supreme Court, accustomed to being treated as grand poobahs of the realm, are tongue-lashed as if they were a group of ill-prepared law students — on national TV.

"With all due deference to separation of powers," said President Barack Obama, not exhibiting much deference at all, "the Supreme Court last week reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections." And there, just 20 feet or so from Obama's lectern as he gave his State of the Union address, sat three of the eminences who had done the deed.

Chief Justice John Roberts Jr. kept his chin up and upper lip stiff. Justice Anthony Kennedy, who wrote the opinion that erstwhile law professor Obama was blasting, stared stonily ahead as dozens of nearby Democratic lawmakers rose to the president's accusatory applause line. Justice Samuel Alito was caught on camera shaking his head and mouthing what appeared to be "Not true!"

Don't expect to see that trio, or their conservative colleagues Antonin Scalia and Clarence Thomas, spearing little meatballs at the presidential Super Bowl party. (OK, OK, that's meant as a joke. Presidents hanging out with Supreme Court justices, whatever their ideological bent, would be a sign of the end times for sure.)

Was Alito objecting to Obama's charge that precedents had been ignored, or to his forecast of the dire effects of the high court's ruling? Maybe both. But Obama was scarcely alone in his criticism. In fact, it's difficult to imagine a more thorough and compelling critique of the majority decision in the epic Citizens United campaign financing case than the blockbuster dropped in dissent by Justice John Paul Stevens.

As Obama signaled, the case was all about the rights of corporations to spend money to try to influence the outcome of elections, boosting some candidates and attacking others. And that made it fundamentally a case about the proper application of the First Amendment and its guarantee of free speech, since it's pretty much accepted these days that campaign expenditures are a form of speech.

The court's Kennedy contingent mounted its high horse in free speech's defense, and of course that's a position with inherent appeal. But with its absolutist approach it wiggled around an underlying question: Should corporations (and unions, since they also were covered in the statute at issue) be entitled to the same speech guarantees as individuals?

Stevens, writing also for Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, was blistering as he dissected the majority's views and rationale. Corporations entitled to be treated as "natural persons" in the context of campaign finance rules? No way, argued the Supreme Court's dean. He detailed the laws, stretching back to 1907 and the reforms championed by President Theodore Roosevelt, aimed at checking corporate influence over elections.

Court decisions down the decades shaped those laws while upholding their thrust. Now, Kennedy and his four like-minded colleagues had strained for reasons to disregard those precedents. That approach was the essence of over-the-top judicial activism - the bane of conservatives except when it serves their purposes.

Here was the issue at the bottom of this legal brawl: Does the potential influence of corporate spending so threaten the integrity of our democratic system that laws meant to dampen that influence should be allowed, First Amendment guarantees notwithstanding?

Uh, yeah, argued Stevens. And he went into grisly detail explaining how campaign advertising financed directly from corporate treasuries stands to warp our political system.

The key concept is corruption, or the appearance of corruption, which also saps the public's faith in its government. For influence to be corrupting, Stevens argued, it does not have to result in an obvious quid pro quo such as vote buying or selling - illegal in any event. He noted "the myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of, some outlay of money the parties have made or will make on behalf of the officeholder."

With companies now free to run independent ad campaigns for or against candidates, those in power also will have a greater chance to shake down the boardroom folks who control all that money.

If there's such a problem with corporations making known their views about candidates, does that mean media outfits that traditionally state their views on political contests would do well to put a sock in it? No, and in fact Kennedy maintained that the law he was striking down could have been turned against the press.

Yet there's another First Amendment clause extending, in accord with the Founders' wisdom, freedom of the press along with freedom of speech. Chief Justice Roberts, in a concurring opinion, suggested that the press was shielded in its right to comment on candidates simply through "legislative grace." Fortunately, and not just for those of us in the business, the shield is stronger than that.

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