Like most Americans, I have not read the SCOTUS corporate First Amendment free-speech decision, Citizens United v. Federal Election Commission (No. 08-205, decided January 21, 2010). This has not prevented me from having an opinion. Chief Justice John Roberts advocated stare decisis in his confirmation hearings; yet this 5-4 ruling not only discards precedent, but also appears fundamentally wrong.
1. Supply and demand. The Federal government auctions pollution rights, radio waves, airport departure gates and oil fields. It controls the minimum wage, denies mergers and acquisitions that stifle competition, defines the types of securities that may be traded, and limits Wall Street bonuses. It should also regulate corporate campaign spending. Free and fair elections are the lifeblood of our democracy; and we have recently seen how corporate excess was a major factor in triggering the recession.
The amount of advertising permitted in a political campaign should be regulated beyond the prohibition of what is false or misleading. Such regulation should include taxing political advertising budgets; capping spending in proportion to either the sums raised by the candidates or the size of the corporate footprint in the electoral district; or scaling ad campaigns according to the resources of the adversary.
2. Corporations are not people. Corporations are a legal fiction. They are clusters of assets granted certain rights under state and federal regulation. They register, pay taxes and obey many laws applicable to individuals (like not bribing foreign officials in exchange for sales). When they act lawfully, we allow them to sue and be sued; and to shield investors and employees from personal liability for negligence and economic loss. We do not allow them to vote, “buy” votes, or give money to candidates directly. Once you open the floodgates and allow non-human aggregations of capital to throw elections with unlimited spending, we may see attack ads financed by entities that are not only outside the electoral district but the whole country.
3. Commercial speech has always been subject to regulation. It is Constitutional, for example, for Congress to ban cigarette ads from TV for the purpose of protecting children. If tobacco company ads may be regulated, why not control campaign attack ads sponsored by banks, investment firms, the weapons industry, insurance companies, and the like?
4. Unlimited money will distort the vote. West Virginia strip mines may spend millions on candidates. Opponents who represent the interests of the poor, the sick, the environment or the unemployed may lack financial resources to counter the media blitz. Voters who are less wealthy or have less formal education are generally more susceptible to the influence of media; and may very well decide to stay home or vote for the “guy in the ad”. I do not believe that is good for our electoral system or for our democracy.