WHEN FIVE US Supreme Court justices struck down vital restrictions on spending by corporations in political races this week, they were reacting, to some degree, to the evident flaws in existing campaign-finance regulation. Yes, special-interest money will find its way into the political system, as Justice Anthony Kennedy’s majority opinion points out. Yes, the Federal Election Commission has to make fine, subjective judgments, such as whether an ideologically motivated documentary film counts as a campaign ad. And yes, limits on corporate campaign activity necessarily mean that businesses, nonprofits, and labor unions cannot always throw their weight behind candidates to the extent that their leaders might like.
Still, these complications hardly justify the far-reaching conclusion that corporations should enjoy the same free-speech rights as real human beings.
Joined by the court’s four most conservative justices, Kennedy ruled that the group Citizens United should have been allowed, during the 2008 Democratic primary season, to spend money from its general treasury to advertise its film “Hillary: The Movie’’ and distribute it on video-on-demand service. In reaching that decision, though, the court went well out of its way to invalidate laws prohibiting corporations from making independent expenditures for or against candidates for federal office. The ruling will likely sweep away state campaign-finance restrictions as well.
In deciding the case, the five justices assumed that campaign-finance rules are keeping business and union interests out of the political marketplace, when experience suggests the opposite. The justices also ignored the possibility that a vast influx of corporate money into elections will promote corruption. Never mind that, as recently as June of last year, Kennedy himself acknowledged that corporate campaign spending can cloud an official’s judgment, when he wrote an opinion ordering West Virginia Supreme Court Justice Brent Benjamin to recuse himself in a case involving a company whose CEO had spent $3 million to get Benjamin elected.
It simply isn’t true that federal law gives corporations no voice in politics, since they can set up political-action committees that take donations from their employees and shareholders. What corporations haven’t been able to do is pay for political activity out of their treasuries. And with good reason: Even a small corporation can bring far more money to bear on a candidate than all but the wealthiest individuals.
At least the ruling upholds requirements that the source of political spending be disclosed. (Justice Clarence Thomas would have uprooted even that.) Yet disclosure rules alone may not be enough to keep corporate spending from overwhelming the election process - or devoting more money to currying favor with politicians rather than improving their own businesses. Minimally, Congress should require corporations to seek shareholders’ permission before spending money in political campaigns, coupled with a similar restriction on unions.
The full impact of this week’s decision is hard to predict, for changes in the campaign-finance system play out in unpredictable ways. What’s clear now is that the Supreme Court had a choice between protecting the influence of real individuals and maximizing the influence of abstract entities created by legal fiat. And five justices chose the latter.