“The law, in its majestic equality, forbids the rich, as well as the poor, to sleep under the bridges, to beg in the streets, and to steal bread.”
Even for true believers of the First Amendment, the decision in the latest campaign finance case, Citizens United v. Federal Election Commission, raises difficult issues. (For a press report on the decision, click here. For an analysis of the decision, click here. For reference to multiple commentaries on the case, click here)
In a 5 – 4 decision, the Court struck down restrictions on expenditures for political campaigns by corporations and unions. The decision accords such organizations a First Amendment right to spend unlimited amounts to get their political message across, to advocate for specific candidates, and to influence the outcome of elections. Justice Kennedy is eloquent and passionate about the importance of the First Amendment, language that is heartening to First Amendment advocates and will no doubt be cited to defend free speech rights in a variety of other contexts. The decision will of course benefit institutions with different opinions and perspectives. Indeed, many non-profit organizations that want to inform their members and the public about political candidates urged the Court to reach this result.
But the dissenting opinions raise troubling questions about the effect the decision will have on the integrity of elections, and whether the result will be to privilege the voices of the rich and powerful. These questions reveal a problem largely avoided by the majority – that granting moneyed interests unfettered free speech rights necessarily undermines the ability of those with less means to be heard. The First Amendment rights of some to influence the electoral process have been vindicated, but the rights of others to participate equally in the conversation have been largely ignored.
This case is part of a trend in which the Court is increasingly protective of corporate speech rights, while simultaneously cutting back on the speech rights of individuals, like students and government employees. An important principle may have been upheld in this case, but the fact that only some will benefit from it remains profoundly disturbing.
Check out our previous commentary on First Amendment challenges to campaign finance laws. For contrasting views of the decision from First Amendment advocates, compare this with this.