SCOTUSblog invited CCP Chairman Brad Smith to comment on the Supreme Court’s ruling in Citizens United v. Federal Election Commission. His piece, “Citizens United, Shareholder Rights, and Free Speech: Restoring the Primacy of Politics to the First Amendment,” is split into two parts.
Part I addresses the Court’s jurisprudence in Citizens United, and responds to Professor Laurence Tribe’s SCOTUSblog commentary critiquing the Court’s ruling:
In his critique of the decision here at SCOTUSblog, Professor Tribe avoids the hysteria that has taken over much of the left. While there is no doubt that this decision is important and will result in more public political speech (which I believe is a good thing), Professor Tribe notes that fears of an “overwhelming flood” of corporate political spending are overblown. Professor Tribe correctly points out that before Citizens United, twenty-six states already allowed unlimited corporate spending in elections (and two more allowed limited corporate spending), and these states, representing over sixty percent of the nation’s population, were not overwhelmed by corporate or union spending in state elections. Moreover, they include the top five rated states in Governing Magazine’s rating of the best governed states (Utah, Virginia, Washington, Delaware and Georgia). Furthermore, prior to the McCain-Feingold Act of 2002, corporations could fund “issue ads,” hard-hitting ads that discussed candidates and issues but stopped short of asking citizens to vote in any particular way. In defending McCain-Feingold in the courts, reformers had argued vociferously that these “issue ads” were no different in effect from the “express advocacy” ads the Citizens United Court ruled corporations have a right to make, and the Court had expressly adopted that view in McConnell v. FEC. If that is true, then the change in the law is merely, as a practical matter, back to the status quo of the 1980s and 1990s. While many people do not like that change, it is difficult to argue that elections improved, or special interest influence declined, during the seven year reign of McCain-Feingold.
Part II details concerns about congressional regulations proposed after Citizens United on shareholder governance of corporate political expenditures and restrictions on domestic subsidiaries of foreign companies:
Citizens United is important not because it will lead to a flood of corporate and union spending in political races, but because it re-establishes a core principle of First Amendment law, which is that the government cannot be in the business of discriminating against U.S. citizens engaged in political activity simply because of the organizational form of their engagement. But even if it should lead to a flood of corporate spending, the alternative endorsed by the government and the dissenting justices on the Supreme Court — an America where the government could ban political books and movies — is clearly far worse.
