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A "Radical Decision" - 01/23/10

The Supreme Court decision announced Thursday the 21st, Citizens United v. Federal Election Commission, holding a section of the Bipartisan Campaign Reform Act, often referred to as McCain-Feingold, unconstitutional, has got some commentators and outhouse lawyers in quite a twist. A few commentators, in fact, have all but declared the end of the republic as we know it.

A local blogger suggested that as a result of the case, "Lobbyists now have the constitutional right to, in essence, bribe lawmakers."

He wrote further: "Considering that Broward County officials are already mired in a federal bribery case, it's hard to imagine what new evils the ruling might unleash in local government."

Another overwrought commentator stated that the decision was intended to give conservative and Republican candidates a financial advantage in future elections. Ah, a right-wing conspiracy; that explains everything.

The New York Times called the decision disastrous, a "radical decision, which strikes at the heart of democracy."


Let's focus on the first stated concern, if I might be permitted to rewrite it a little, of the possible impact of the decision on local government laws, adopted in a few places around the state, prohibiting campaign contributions from corporations and other entities like unions.

I don't intend to do a point-by-point analysis. The decision is complicated and this is not a law review. What I will do is tell you what the case is, what it isn't, and what it doesn't do, in my opinion.

First off, the case is unusual in the way it was decided. After initial oral arguments, the Court called the parties back for a second round of oral arguments addressing a wider range of issues. Most cases are decided on the basis of one oral argument session.

Second, the case overrules a couple of previous decisions of the Court. This is not unprecedented or verboten. It's just not done very often. Jurisprudence evolves over time, but the Court does not like to reverse its own previous decisions in so many words.

Then, there are things this case is not about. It is not about state or local law; it addressed a particular section of a particular federal law, which applies only to federal elections. It is not about campaign contributions. The petitioner in this case is not a business corporation, but a non-profit that received some of its financial support from for-profit businesses.

The decision also does not confer, as one commentator I read claimed, a constitutional right to free speech on corporations not previously recognized. In a 1978 decision, in a case involving a Massachusetts statute similar to the one at issue in this instance, the Supreme Court held,

We ... find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The "materially affecting" requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication.

In other words, the Court stated, in framing the issue in the Massachusetts case, "The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection."

It is true that campaign contributions to candidates, especially local candidates, whether by individuals or corporations or unions, pose difficult philosophical issues for people interested in reform. In some respects a contribution to a candidate's campaign is no different from an outright gift; most contributions or gifts are intended to influence candidates and public officials. It's naive to think otherwise. Bribery? There is a fine line.

State law places limitations on campaign contributions. Some cities have further limited the amount of contributions and have banned contributions directly from corporations, unions, and similar entities that are not natural persons.

As previously stated, the Citizens United decision is not about campaign contributions anyway. The law in question prohibited "independent expenditures" by an organization like Citizens United intended to influence the outcome of a federal election. In this case, the organization had produced a film which was intended to influence Democratic voters in the presidential primaries in 2008. The film was about Hillary Clinton and was "pejorative" according to the Court.

It is unclear how this decision would impact local political campaigns. In fact, it is unclear that it would have any effect as a practical matter.

However, jumping to nonsense conclusions that this case somehow legalizes bribery in Broward County (you mean it's not already legal?) or strikes a blow on democracy seems to me unjustified and overly dramatic.

Chances are Congress will move to amend existing laws to try to repair the problem at the federal level, and local campaign laws will not be successfully challenged on the basis of this opinion.

If there is anything to worry about concerning the war on corruption here in Broward, it is the pending Supreme Court decisions on the honest services statute, the law federal prosecutors rely on heavily in their prosecution of local officials gone bad.