Mark Watson

“The Government urges us in this case to uphold a direct prohibition on political speech.  It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern.

Free speech for me, but not for thee

“Its theory, if accepted, would empower Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations–as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of democracy.”

This quotation is not from George Orwell’s 1984. Rather, these words were written by the Chief Justice of the United States Supreme Court, John G. Roberts, Jr., in his concurring opinion in today’s Citizens United v. Federal Election Commission decision, where the Court struck down the most odious portion of the McCain-Feingold law. Part of McCain-Feingold banned electioneering communications paid for by corporations 30 days immediately prior to a presidential primary, and 60 days before the general election.

In essence, the Court ruled that the federal government’s efforts to ban political spending by corporations in support of or in opposition to individual candidates violates the First Amendment’s free speech clause.

Justice Anthony M. Kennedy authored the opinion in which he wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

First Amendment opponents were quick to offer their spin against the ruling. President Obama’s White House released a statement that claimed “the ruling represents a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”  The administration has called upon Democratic allies in both houses to enact legislation to circumvent the ruling.

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Sen. Charles Schumer, D-New York, reacted with his usual hyperbole: “The bottom line is, the Supreme Court has just predetermined the winners of next November’s election. It won’t be the Republican or the Democrats and it won’t be the American people. It will be corporate America.”

Supporters of free speech hailed the decision. Senate Minority Leader Mitch McConnell, R-Kentucky, said the decision was “an important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day.”

In addition to the Chief Justice, Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas joined Kennedy’s majority opinion.

Justice John Paul Stevens dissented, writing: “The court’s ruling threatens to undermine the integrity of elected institutions across the nation.” Justice Stevens’s troubling dissent demonstrates that the Court continues to have members willing to circumvent Constitutional absolutes when political correctness dictates otherwise. The newest member, Justice Sonia Sotomayor, joined Ruth Bader Ginsburg and Stephen G. Breyer in supporting Stevens’s dissenting opinion.

“Congress shall make no law … abridging the freedom of speech, or of the press…”  First Amendment, US Constitution.

There is no exception in the First Amendment for electoral integrity.  Fortunately, a majority of the Court agrees.

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