Amid the clamor of Sen. Brown’s stunning upset in Massachusetts against Martha Coakley, the Supreme Court issued their judgment of the landmark case Citizens United v. FEC. The 2002 Bipartisan Campaign Finance Reform Act, better known as McCain-Feingold, was largely overturned, which will likely lead to a radical shift in how campaigning is done in the US.

First, the facts: In the 2008 election cycle, the non-profit corporation Citizens United released a documentary largely antagonistic to Sen. Clinton. Citizens United planned a release for theaters as well as pay-per-view and DVD, but McCain Feingold limited advocacy for or against candidates during elections; even advertising the movie would have been illegal, yet the expenditure for the movie was entirely independent of the campaigns for or against Sen. Clinton, so there can be no charges of corruption, the official reason for campaign finance laws.

During arguments, the government claimed that any kind of broadcast communication that even mentioned a candidate’s name would be covered under the law. This includes advertisements for products. Remember the Obama Commemorative Plates going around a year ago? Illegal! The Kindle, Amazon’s electronic book, is also subject to the law. The Court also found that, by letting the laws stand, they would potentially allow Congress to ban books and other print media that mentioned candidates, and by setting a precedent that such action might be in principle permissible, lead to censorship in other ways. Even the blogosphere wasn’t immune, because express advocacy of candidates in an electronic form is technically illegal under McCain- Feingold. The government also argued that because “the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right [than other groups].” This means, of course, that media corporations have potentially greater rights to free speech than everyone else, and true to the government’s word, mainstream media giants were exempted from the law.

The hysteria from the left, and even some nominal conservatives and libertarians, has been forthcoming in no short supply. They decry the fact that, by the Court’s decision, corporations will be allowed to influence elections. But what they are largely criticizing, corporate funding of elections, is still illegal. Corporations have been barred from direct contributions to campaigns for a century, and that facet of campaign finance law stands. The decision affirms the right to make independent expenditures and communications – a documentary, a blog, an advertisement. Corporations are still banned from directly contributing to campaigns, and so there can be no corruption – unless congressmen want to admit that as soon as someone says something nice about them they are obligated to dispense favors.

Their criticisms are based in a mindset that evades any consideration of what corporations are. A corporation is simply a voluntary association of individuals who combine their capital to undertake large expenditures and reduce individual liabilities. It does include for-profit corporations, certainly, but also non-profits, think tanks, and policy advocacy groups such as the ACLU, NRA, NARAL, Cato Institute, and Heritage Foundation. Why should individuals, speaking jointly under the aegis of an advocacy group, be prohibited from speaking via broadcast, such as when the ACLU was prohibited from advertising the names of candidates who had voted for warrant-less wiretapping and other invasive government powers? Why should free speech be taken so literally as to exclude dissemination of information by print and broadcast media? As Chief Justice Roberts stated, “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.” And, for the unconvinced who would still claim that a corporation, particularly a for-profit one, is a danger to democracy, consider what would happen to liberty in other areas if organization along corporate lines may be a justification for some restriction. We can have the right to practice religion – but not the right to build a church, which is often a corporate endeavor. You’re free to attend a private school, but you can’t incorporate to establish or maintain one. And you’re free to write about whatever you want on your blog, so long as you don’t use corporate-owned servers.

Logically, the kind of power the government granted itself, and many citizens have supported in the name of “clean politics”, makes any freedom or right currently protected vulnerable to harassment or outright denial by government. Large segments of the population believe nevertheless that for-profit corporations might unduly influence politics so that policies and candidates do not accurately reflect the public’s interests. They fail to take into account two very critical details.

First, corporations and unions do not speak with a uniform voice. While some corporations such as Wal-Mart supported Obama’s health insurance regulation proposals, others, such as Whole Foods, opposed them. Second, corporate shareholders are predominantly average Americans who own corporate assets by proxy, through investment firms who have been entrusted with this money to maximize shareholder wealth. Not only will it be against their self-interest to spend money lobbying for things investors may find controversial, a more plausible attempt to “seek rent” (create a policy good for the company and bad for everyone else) would be severely hamstrung by the fact that diverse portfolios would make such an act cause more self-injury than benefit.

President Obama’s response, and history, are particularly enlightening. He revealed his ignorance and poor taste by remarking in the State of the Union, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests…” The aforementioned ignorance of what McCain-Feingold actually says notwithstanding, it should be noted that the law is about seven years old – that’s a few short of a century, Mr. President. Shortly after the decision, he offered the following commentary: “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is 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. This ruling gives the special interests and their lobbyists even more power in Washington while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.” This, from the man who accepted nearly $1 million from Goldman Sachs, more than any other contributor, as well as corporate and union contributions as a state legislator.

Mr. Obama’s objections, as far as can be ascertained, are not that corporate money will support a bad agenda. It is that it won’t support his agenda. He was quite fine with corporate funding from rent-seeking unions, insurance companies, and pharmaceutical companies supporting his ambition to tighten health care markets. He conveniently ignores the fact that such corporations would not be “[marshaling] power in Washington”, they would be presenting ads to the general public, and those ads would have to reveal who was funding them. Rather than spending money on lobbying Congress directly, the most they could do is denounce a congressman, and such ads would likely be ineffective since voters can easily establish a corporation’s self-interest in supporting a particular candidate or agenda. A corporation pushing an agenda antithetical to most Americans’ values cannot be successful, unless most Americans are ignorant and easily swayed – and if they are, what does that say about a man who wins a landslide electoral victory? Furthermore, as Obama himself should know from his presidential campaign, small donors and viral advertising through media like Facebook are far more effective than massive television ads.

Campaign finance regulation heavily favors incumbents, who have numerous legal provisions to protect them from competition for public visibility. For starters, they have name recognition. They can fund mailed advertisements (“newsletters”, “Washington Updates”) at taxpayer expense via the franking privilege. They can travel across their states at taxpayer expense. Incumbents often have more money than their challengers due to existing fundraising infrastructure. Yet the public is sold the nonsense that “the public interest requires no less” than these restrictions, and therefore entrenched politicians and interests.

The Constitution is clear enough: “Congress shall make no law…abridging freedom of speech” (emphasis added). The Court, and common sense, tell us that spending is a necessary and constitutionally protected component of speech, because it purchases the medium by which the speech is conveyed.

The dissent, including Obama-appointee Justice Sotomayor, has demonstrated a woefully low level of respect for both the Constitution and the moral principles it embodies. On the other hand, we can be thankful for Justice Kennedy’s opinion standing for the majority. It is commendable for its support of free speech and free thought: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful…The First Amendment confirms the freedom to think for ourselves.”

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