The Supreme Court has long recognized that Campaign finance regulation (“reform”) limits the ability of citizens to speak on political matters, in apparent contravention of the First Amendment rights of speech, press, and assembly. The only justification that the Supreme Court has recognized for upholding campaign finance regulation despite the limits it imposes on First Amendment rights is to prevent, “corruption or its appearance.” Moreover, limitations must be “content neutral” — that is, not aimed at particular viewpoints. “Reform” cannot withstand constitutional scrutiny if it is just an excuse to silence disfavored voices.
I don’t think much of the anti-corruption rationale for upholding restrictions on political speech, on either theoretical or empirical grounds, but let’s let that pass today. In September, in Citizens United v. FEC, the Supreme Court will hear argument on whether to overrule Austin v. Michigan State Chamber of Commerce, a 1990 decision that allows a complete ban on all corporate political expenditures.
Naturally, the “reform” community is up in arms. Why? Well, here is what Austin supporter Professor Rick Hasen, owner of the influential Election Law Blog, had to say in the immediate aftermath of the Court’s announcement on Austin:
If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.
Here is National Journal‘s Eliza Newlin Carney, an ardent and long-time advocate of “reform:”
The bottom line: Already-influential corporations would win vast new powers — something that arguably couldn’t come at a worse time.
Campaign finance “reform” lobbyist Fred Wertheimer, President of the pro-regulation organization Democracy 21, expresses his concern that:
Overruling the Austin decision — and finding that corporations have a First Amendment right to spend unlimited sums of corporate funds to influence federal campaigns — would fundamentally undermine our democracy and change the character of federal elections. It would allow the immense wealth of corporations to drown out the voice of the American people.
Does this sound like these influential commentators are interested in “content neutral” legislation? Or does it sound like they want to silence a point of view that they associate with corporations, and, at least in Hasen’s case, with Republicans?
E.J. Dionne, The Washington Post‘s syndicated Democratic columnist, adds similar thoughts:
[D]o conservatives on the court see an opportunity to fight the trends against their side by altering the very rules of the electoral game?
Is Dionne admitting that the law is intended to suppress pro-Republican voices? Dionne goes on to quote Sen. Chuck Schumer (D-N.Y.): the ruling, says Schumer, “would dramatically change America at a time when people are feeling that the special interests have too much influence and the middle class doesn’t have enough. It would exacerbate both of these conditions.”
So it is about forcing disfavored (by Senator Schumer) influences to keep quiet?
Finally, to drive the point home, there is this timely diary titled “Can We Make Campaign Finance Reform a Priority Yet,” at the far left blog site, Daily Kos, posted July 12: When the voices of ordinary citizens compete with those of corporate lobbyists with big donations, we lose every time.
Again, a lot of assumptions there about what constitutes speech, the ability of voters to process information and make decisions, what voters “really” want, and who constitutes “ordinary citizens” (certainly not the millions who own shares in corporations!), etc., but the bottom line seems to be pretty clear -what Professor Hasen, Carney, Dionne, Senator Schumer, and the Daily Kos’s anonymous diarist all agree on is that campaign finance restrictions are needed to silence the left’s enemies so the left can win political victories. The fact that they call their opponents “special interests” and accuse them with unsubstantiated charges of “corruption” is merely an effort to camouflage that fact.
Judge Sotomayor has had many favorable things to say about campaign finance reform in the past. Let’s hope she gets some questions on it this week.