What not to do in a court room: Part II

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22 January 2010

I've always felt the criticisms about the role of money in American politics were overrated; after all, we in Australia have far less strict requirements regarding disclosure of and limits on donations. That was until the Supreme Court handed down its latest decision on campaign finance law today, which said that, under the First Amendment right to free speech, the government cannot ban corporations from spending money for candidates. Politico explains:

The Supreme Court on Thursday opened wide new avenues for big-moneyed interests to pour money into politics in a decision that could have a major influence on the 2010 midterm elections and President Barack Obama’s 2012 reelection campaign.

The long-awaited 5-4 decision overruled all or parts of two prior rulings by the court that allowed governments to restrict corporations and unions from spending their general funds on ads expressly urging a candidate’s election or defeat. But the decision upheld disclosure requirements for groups like the one that brought the case.

The case deals with an obscure film titled Hillary: The Movie, produced by a conservative group advocating against the 2008 Presidential campaign of the titular Clinton. But while the roots may be trivial, the effects are not. Like the New York Times says:

The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.

At stake in this case, essentially, were two interpretations of the First Amendment. One held that individuals had a First Amendment right that forbade the government from limiting their freedom of speech, particularly in regards to political thought. The second one, which actually prevailed, held that the First Amendment guaranteed free speech, regardless of who - or what - was making it.

Both positions seems equally logical to me, though the latter seems far less valid within the context of American law, society and precedent. The US constitution is indeed absolute in this regard, saying government shall "make no law" (my emphasis) restricting freedom of speech, but it gives no indication as to whom it applies. To say that this should necessarily apply to legally-created entities, and not just human beings within the court's jurisdiction, should not be seen as anything but a radical step (it appears to derive in part from a misreading of the reporting of this case), regardless of what one thinks of the decision. This strikes down the philosophy that corporate political speech is fundamentally different from individual political speech, an idea that has been upheld within the American system for nearly a century.

If there is an upside to this decision, however, it is that the Court clearly has decided freedom of speech is an issue about which it can make radical pronouncements. That, hopefully, is a good sign for another case that will shortly come before it. That case regards the rights of individuals - in this case, the celebrities Cher and Nicole Richie - to have their obscene language broadcast by American television networks. If non-people can say whatever they like about political figures - as nastily as they like and expensively as they like - let's hope the Court at least extends its commitment to liberty to allowing actual people to utter a few stray cuss words. One of these cases concerns a far greater threat to American society, and it's not the potty-mouthed singer.

Tags: Scotus