The End of Restraint

The Supreme Court's five conservatives are properly protective of American citizens' First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court's blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders' money—without their consent—into ads supporting or attacking federal candidates. Indeed the 5–4 decision would allow any big company to spend a fortune attacking candidates whom many, or even most, of its stockholders would rather support. And corporations—including multinationals controlled by foreigners—will spend money on elections not to advance the political views of their stockholders, but to seek economic advantage.

So the court's decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all five of the more conservative justices are "judicial activists," the same imprecation that conservatives have for so long—and often justifiably—hurled at liberal justices.

Judicial activists—at least as I define them—are judges who are unduly eager to aggrandize their own power and impose their own policy preferences on the electorate. They invoke farfetched interpretations of the Constitution to sweep aside democratically adopted laws and deeply rooted societal traditions. I'd hoped that Bush-appointed Chief Justice John Roberts and Justice Samuel Alito, who came across in their confirmation hearings as believers in judicial modesty, would bring a healthy dose of restraint to a court long populated by activists, and would thereby shun sharp lurches to the ideological right. It appears that I misjudged them.

I don't accuse the conservative justices of being any more activist than the liberals, who are all too eager to promote their own ideological agendas. But the conservatives have booted away any standing that they may once have had to pose as the guardians of judicial restraint. To wipe out a 63-year-old congressional ban on virtually all corporate and union spending in support of, or opposition to, federal candidates, the conservative justices overruled major Supreme Court precedents from 1990 and 2003. (The decision left intact the ban on direct corporate contributions to candidates.)

Writing the majority opinion, Justice Anthony Kennedy proclaimed this necessary to protect the free-speech rights of "citizens." But corporations are not citizens. And while most corporate officers and stockholders are citizens, those who want to pool their money to support or oppose federal candidates have long been free to do so through political action committees. Conservative justices point out that most corporations are owned by one person or a few people for whom forming a PAC would be burdensome. True. But such people have no need to use their corporations as conduits for their campaign spending.

To be sure, two types of corporations have compelling arguments for exemption from the ban on corporate campaign spending. Congress has long exempted media corporations. The First Amendment explicitly protects freedom "of the press" as well as of speech. Those who buy stock in media companies know of, and implicitly consent to, their roles in supporting and opposing candidates. The other group consists of nonprofit ideological corporations whose members pool their money precisely for the purpose of influencing policy. Examples are the Sierra Club, the NRA, and the ACLU. Since 2002 Congress has banned these corporations from election spending—not to prevent corruption by these groups, but rather to stifle "negative attack ads" criticizing members of Congress and other candidates.

The court could, and should, have exempted nonprofit ideological groups without disturbing the ban on business corporations and union campaign spending. But all nine justices passed up the opportunity to carve out such a pragmatic, principled decision. The liberals thereby demonstrated that they are all too ready to sacrifice the First Amendment rights of real citizens who want to pool their money for election spending. But the conservatives—all too eager to expand the political power of big business in the guise of protecting First Amendment rights—are in the driver's seat.