WHAT WOULD REHNQUIST DO?
The Supreme Court’s gift of constitutionally protected political speech to paper entities in the
case would have elicited a vigorous dissent from the late Chief Justice
for a simple and compelling reason: he was a conservative. As a conservative, he would have agreed with dissenting Justice
John Paul Stevens
that the decision "represents a radical change in the law." This is clear from Rehnquist’s mostly forgotten dissent in a 1978 case, First National Bank of Boston v. Bellotti.
The issue in Bellotti was whether a Massachusetts criminal statute prohibiting spending by banks and businesses to influence voting on referendum proposals violated the First Amendment. In a 5-to-4 ruling, the Court held that the bank indeed had freedom of speech and that it had been violated.
The opinion was written by Justice
, who found support in Santa Clara County v. Southern Pacific Railroad. In that infamous 1886 case, Chief Justice
announced, "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does." Ratified only eighteen years earlier, the amendment defines a citizen as a person "born" or "naturalized" in the United States. That’s why Santa Clara was ultimately judicial activism. Yet putative conservatives who regularly denounce Roe v. Wade reliably ignore it.
In his Bellotti dissent, Rehnquist noted approvingly that Congress and thirty-one state legislatures "have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible." He went on to warn, "It might reasonably be concluded that those properties [of corporations], so beneficial in the economic sphere, pose special dangers in the political sphere."
Rehnquist’s warning was conservative; the Powell majority’s brushoff was radical.
The issue in Bellotti is closely related to that which Justice
‘s majority contrived to address in Citizens United: whether paper entities have, in Rehnquist’s words, "a constitutionally protected liberty to engage in political activities." He would have judged the dissenters, routinely described as liberals, to be conservatives. MORTON MINTZ
Few fights in Washington will define the way we communicate and participate in democracy better than the current wrangling over net neutrality. The Federal Communications Commission is developing rules that, if crafted correctly, will guarantee that the Internet remains what Columbia Law School professor and Free Press chair