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Editorial

The 1st Amendment and corporate campaigning

Thursday's U.S. Supreme Court ruling that rolls back limits on corporate political spending could strengthen the hand of special interests.

January 22, 2010

According to one campaign reform group, the U.S. Supreme Court created "a disaster for the American people" by ruling Thursday that corporations could spend money out of their own corporate pocketbooks on independent advertisements endorsing or opposing candidates for public office.

We hope that's an exaggeration. But the 5-4 decision certainly will complicate the effort to reduce the corrupting influence of special-interest money in campaigns. What's most disturbing is that the court could have resolved the issue before it -- whether Congress erred in 2002 when it restricted "issue advertising" in the weeks before an election -- without going nearly so far.

Instead, the court took the unnecessary step of overruling a 1990 decision. This overreaching by the majority, including Chief Justice John G. Roberts Jr., belies Roberts' assurances to the Senate during his confirmation that he believed in judicial modesty and decision-making by consensus. Instead, Thursday's decision, with conservatives on one side and liberals on another, inevitably will encourage the impression that the court is just another political body.

We say this even though we support -- and advocated -- the specific outcome in this case. The court was correct to conclude that Citizens United, a conservative group, had a right to air on cable television a scathing "documentary" about Hillary Rodham Clinton at a time when she was seeking the 2008 Democratic presidential nomination. As we have repeatedly observed, the provision of the McCain-Feingold law used to prevent the telecast was unconstitutionally over-broad. It banned the airing within 30 days of a primary or 60 days of a general election not only of advertisements that asked viewers to vote for or against a candidate, but also of any "electioneering communication" that so much as mentioned a candidate, even if it didn't specifically endorse or oppose.

This section of McCain-Feingold, whose primary purpose was to ban "soft money" contributions to political parties, was aimed at so-called sham issue ads that are in fact thinly disguised campaign promotions ("Call Senator X and tell her to abandon her socialist program"). Before McCain-Feingold, unions and corporations were already forbidden from explicitly endorsing candidates. But the new electioneering communication provision created a much heavier burden on political speech, catching in its regulatory net ads that combined a statement about an issue with criticism of a candidate's record.

The first major challenge to this provision came when a Wisconsin anti-abortion group wanted to broadcast ads urging the state's senators -- only one of whom was up for reelection -- not to block President George W. Bush's judicial nominations. The group was subject to the ban on corporate endorsements because, although nonprofit, it accepted some contributions from businesses. Eventually the court ruled that applying the electioneering communication ban to the ads was unconstitutional. In that 2007 decision, Roberts narrowed the prohibition to cover only those ads that were "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

Even this refinement didn't dispel the ambiguity; witness the disagreement over whether "Hillary: The Movie" qualified as electioneering communication, even though it was 90 minutes long, even though it was available to cable television viewers only "on demand," and even though, while it dealt with the 2008 campaign, it had a longer shelf life. The problem wasn't just these two broadcasts: It was the fact that electioneering communication had such an elastic meaning that judges faced the prospect of continually second-guessing decisions by the Federal Election Commission to permit or disallow an ad; meanwhile, corporations and unions might forgo the right to advertise at all (a right recognized by the law) rather than brave expensive litigation.

That's why the court was right to invalidate the electioneering communication provision in Thursday's decision. But it didn't stop there. In his majority opinion, Justice Anthony M. Kennedy went on to overturn the 1990 decision, so that corporations will now be allowed to spend money not just on electioneering communications such as the Clinton movie, but also on political ads that specifically endorse or oppose a candidate (as long as the ads are made independently of the candidate's campaign). That goes beyond the issue at the heart of the case. The court should have left it for another day and another case, one that might have produced a less polarized and politically suspect decision.

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