Since the rise of modern corporations a century ago, Congress has restricted their participation in political campaigns, recognizing the potential for vast corporate treasuries to drown out the voices of citizens. Since 1947, federal law has prohibited corporations (and unions) from using their general treasury funds for campaign contributions or expenditures. But the Supreme Court now threatens to upend that tradition. Ironically, it seems poised to usher laissez-faire into the marketplace of ideas just as we have seen the bankruptcy of that theory in the capital markets.
Last term the Court took the unusual step of ordering re-argument in a narrow and technical case. Citizens United v. Federal Election Commission asked only whether the FEC could bar a nonprofit corporation from distributing, via on-demand cable TV, Hillary, a film critical of Hillary Clinton, during the 2008 presidential primary. After the case was argued, the Court on its own initiative raised the stakes dramatically by requesting further briefing and argument on a much broader question--whether it should overrule two prior decisions upholding Congress's power to restrict corporate speech in political campaigns. If it does so, it will leave the voting process even more vulnerable to capture by the wealthy and powerful.
One of the precedents under consideration, Austin v. Michigan Chamber of Commerce (1990), is significant chiefly for its recognition that government has a "compelling interest" in counteracting "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Citizens United has set its sights on overturning the principle. Its suit has been joined by the ACLU and esteemed lawyer Floyd Abrams. While this is an issue reasonable progressives can disagree on, we believe Abrams and the First Amendment advocates at the ACLU are confusing the speech of a corporation with that of living, breathing citizens.
Austin, which should be reaffirmed, simply acknowledged that without regulation, wealth threatens to dominate electoral politics. When Austin was decided, Congress had been regulating for-profit corporate campaign spending on that principle since 1907, and the Court had never struck down its efforts. Federal law allows corporations to speak in the context of campaigns, but requires that they finance such efforts through political action committees, whose voluntarily contributed funds reflect the persuasiveness of their ideas, rather than through general revenues, which reflect only the success of their businesses.
The most sensible way to resolve Citizens United would be to hold that election law cannot be applied to projects like Hillary, which was undertaken by a nonprofit and funded overwhelmingly by noncorporate funds. That would respect precedent and tradition, and resolve the case on narrow grounds consistent with the "judicial restraint" approach that Chief Justice John Roberts claimed he was committed to during his confirmation hearings.
But if that's what the Court wanted to do, it would not have needed to call for re-argument. Instead, the Court's five conservative justices seem poised to elevate laissez-faire to a constitutional principle in the political marketplace and unleash corporate treasuries on an electoral system already deeply biased toward the wealthy. The Court should step back from the precipice.