By David A. Kaplan, contributorJanuary 22, 2010: 11:35 AM ET
... I will admit to a certain squeamishness over attacking a ruling that seems to rest on free-speech principles. Those of us who usually plead guilty to being First Amendment absolutists -- after all, the easy-to-read constitutional provision does say, "Congress shall make no law" that abridges freedom of speech -- argue that the remedy to expression we disagree with is more expression. Thus, while we deplore the hateful things that Nazis and Ku Klux Klanners say, we maintain the First Amendment prohibits banning that speech and that the better course is to speak out ourselves more robustly. In that way, no government bureaucrat or censor gets the power to determine what speech is good and what speech is bad, and instead the "marketplace of ideas" decides which ideas win out. So, the argument goes, if you don't like want Exxon says in its ad this November for Congressman Pete Polluter, put on your own ad for Hybrid Hank.
Like most theory, it sounds great. And there is something appealing about apparent consistency: If, say, The New York Times get to endorse candidates or choose whom to give publicity to, why shouldn't Hallmark Cards get the privilege of influencing an electoral outcome? But like much theory, it doesn't work out as well. The fact is, special-interests groups --through lobbying, soft money, and legal direct contributions to candidates -- already exercise huge influence on elections. You can't prove that observation, yet there is widespread agreement among both Republicans and Democrats that the way we finance American campaigns is an abomination -- and that if voices are missing from the marketplace, they are of individuals rather than groups like corporations.
It is within that context that Congress has passed bipartisan legislation dating to the Gilded Age that has curbed corporate spending in the political arena. And since corporations are merely creatures of legislation -- established only to make money for shareholders rather than to be deep-pocketed actors in electoral politics -- it then follows that legislators can regulate corporations, including on matters relating to speech. That's especially so when the individual shareholders in a company retain their full individual right to speak in the arena, including purchasing ads and all the rest. Even when the interests of corporations aren't at stake, First Amendment protections have never been absolute. We draw lines all the time -- most importantly on libel. If you carelessly defame someone in private life, you pay damages. If you defame a public official or someone in public life, you probably win, because the victim has to show you were reckless or worse; nonetheless, the risk of losing -- and the certainty of ruinous legal fees -- casts a chill in newsrooms and editors self-censor anyway. In short, the First Amendment has limits ...
The Court makes its own rules. It chooses which appeals to hear from the thousands brought to it a year (it takes fewer than a hundred). It decides what the relevant questions are. In this case the Court went far out of its way to address a question nobody had asked -- and to create a constitutional right where none is indicated. "Essentially," Justice Stevens noted, "five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law." When liberals do such a thing -- and they did so repeatedly in the 1960s and '70s on issues like abortion -- conservatives hollered "judicial activism!" When conservatives do it now, they squeal about "vindicating constitutional rights." By any other name, that's hypocrisy -- and it allows the public to cynically conclude the court is just another political branch of government, except one that's unelected and unaccountable ...
http://money.cnn.com/2010/01/22/news/companies/supreme_court_citizens_united.fortune/?section=magazines_fortune
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