The Supreme Court yesterday, in a 5-4 decision, declared unconstitutional (on First Amendment grounds) campaign finance regulations which restrict the ability of corporations and unions to use funds from their general treasury for “electioneering” purposes.  The case, Citizens United v. FEC, presents some very difficult free speech questions, and I’m deeply ambivalent about the court’s ruling.  There are several dubious aspects of the majority’s opinion (principally its decision to invalidate the entire campaign finance scheme rather than exercising ”judicial restraint” through a narrower holding).  Beyond that, I believe that corporate influence over our political process is easily one of the top sicknesses afflicting our political culture.  But there are also very real First Amendment interests implicated by laws which bar entities from spending money to express political viewpoints. 

I want to begin by examining several of the most common reactions among critics of this decision, none of which seems persuasive to me.  Critics emphasize that the Court’s ruling will produce very bad outcomes:  primarily that it will severely exacerbate the problem of corporate influence in our democracy.  Even if this is true, it’s not really relevant.  Either the First Amendment allows these speech restrictions or it doesn’t.  In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).  

One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists).  The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like.  Denouncing court rulings because they invalidate laws one likes is what the Right often does (see how they reflexively and immediately protest every state court ruling invaliding opposite-sex-only marriage laws without bothering to even read about the binding precedents), and that behavior is irrational in the extreme.  If the Constitution or other laws bar the government action in question, then that’s the end of the inquiry; whether those actions produce good results is really not germane.  Thus, those who want to object to the Court’s ruling need to do so on First Amendment grounds.  Except to the extent that some constitutional rights give way to so-called “compelling state interests,” that the Court’s decision will produce “bad results” is not really an argument.

More specifically, it’s often the case that banning certain kinds of speech would produce good outcomes, and conversely, allowing certain kinds of speech produces bad outcomes (that’s true for, say, White Supremacist or neo-Nazi speech, or speech advocating violence against civilians).  The First Amendment is not and never has been outcome-dependent; the Government is barred from restricting speech — especially political speech — no matter the good results that would result from the restrictions.  That’s the price we pay for having the liberty of free speech.  And even on a utilitarian level, the long-term dangers of allowing the Government to restrict political speech invariably outweigh whatever benefits accrue from such restrictions.

I’m also quite skeptical of the apocalyptic claims about how this decision will radically transform and subvert our democracy by empowering corporate control over the political process.  My skepticism is due to one principal fact:  I really don’t see how things can get much worse in that regard.  The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin:  ”banks own” the Congress).  Corporations find endless ways to circumvent current restrictions — their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold — and while this decision will make things marginally worse, I can’t imagine how it could worsen fundamentally.  All of the hand-wringing sounds to me like someone expressing serious worry that a new law in North Korea will make the country more tyrannical.  There’s not much room for our corporatist political system to get more corporatist.  Does anyone believe that the ability of corporations to influence our political process was meaningfully limited before yesterday’s issuance of this ruling?

I’m even more unpersuaded by the argument — seen in today’s New York Times Editorial — that this decision will “ensure that Republican candidates will be at an enormous advantage in future elections.”  What evidence is there for that?  Over the past five years, corporate money has poured far more into the coffers of the Democratic Party than the GOP — and far more into Obama’s campaign coffers than McCain’s (especially from Wall Street).  If anything, unlimited corporate money will be far more likely to strengthen incumbents than either of the two parties (and unlimited union spending, though dwarfed by corporate spending, will obviously benefit Democrats more).  Besides, if it were the case that this law restricts the ability of Republicans far more than Democrats to raise money in election cycles, doesn’t that rather obviously intensify the First Amendment concerns?

Then there’s the always intellectually confused discussions of stare decisis and precedent.  It’s absolutely true that the Citizens United majority cavalierly tossed aside decades of judicial opinions upholding the constitutionality of campaign finance restrictions.  But what does that prove?  Several of the liberals’ most cherished Supreme Court decisions did the same (Brown v. Bd. of Education rejected Plessy v. Ferguson; Lawrence v. Texas overruled Bowers v. Hardwick, etc.).   Beyond that, the central principle which critics of this ruling find most offensive — that corporations possess “personhood” and are thus entitled to Constitutional (and First Amendment) rights — has also been affirmed by decades of Supreme Court jurisprudence; tossing that principle aside would require deviating from stare decisis every bit as much as the majority did here.  If a settled proposition of law is sufficiently repugnant to the Constitution, then the Court is not only permitted, but required, to uproot it.