In the text of the recent Supreme Court decision in Citizens United v. Federal Election Commission, I noticed a reference to a case called Bellotti, which was quoted for the following strange claim:

That seemed fairly troubling as an assertion right there. And indeed, the case, First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), really does say this. However, it’s too bad, though, that the dissent in that 5-4 ruling was not also quoted. In that dissent, Justice White, with Justices Brennan and Marshall joining, wrote a very eloquent statement of a number of things that have been troubling me:

There’s some overlap here with my article The Freedom To Hear, though I hadn’t known of this ruling at the time I wrote that piece.

Drowning Out the Opposition

Neither the text I’ve quoted above nor my earlier article goes far enough because neither addresses the paradigm of concern to me and others looking at this ruling—the possibility of one well-funded “speaker” crowding out competing speech.

There is a very similar phenomenon in the computer world called a “denial-of-service (or DoS) attack.” Wikipedia defines such an attack this way:

To some extent, there is a technical difference between a typical denial of service and the worst case scenario expected to happen due to this amendment. Theoretically, no matter how many ads a corporation does, they can’t make you watch them. However, this is a very tenuous distinction because to avoid watching ads is ever more difficult in the modern world. But additionally, if a person wants to be informed by some ads, the difficulty is not just one of avoiding ads, but avoiding the correct ads. Once you admit you’re open to advertisements at all, you’re going to see them in proportion to how much is spent.

Indeed, if one side is sufficiently well-funded, they could crowd out competing ads entirely, pushing them to less-accessible timeslots or less-watched media. At that point, it does become more like a denial of service attack.

Also, even when unlimited spending by one corporation does not literally become a denial of service, it raises the bar for what must be spent to compete. Thus it diminishes the voice of any individual contributor.

Prior Restraint

The Court would presumably prefer to to opine on this matter when it actually comes up, rather than in advance. The freedom of the press has been described as the right to be free from prior restraints.

However, and I think this is key, the passing of a law in Congress such as The Bipartisan Campaign Reform Act of 2002, often just called “McCain-Feingold,” demonstrates not only the fact that abuse of speech is possible, but that it has risen to a level of national urgency. The fact that the law was accepted in bipartisan fashion suggests that it is good law.

Even in these heated times, with a truly bitter divide between the Republican and Democratic Parties, with the Republicans frequently accused of being just the Party of No, contradicting anything the Democrats say, both Senator McCain (R-AZ) and Senator Feingold (D-WI) were in agreement that the Supreme Court decision was a mistake, differing only in the degree of their upsetness on the matter.

The legislature represents the will of the majority. In such cases, the Supreme Court’s job is to represent the weak, those who might be oppressed by the minority. This situation would be laughable if it were not so serious, listening to the Supreme Court suggest not just that the rights of large corporations must triumph over those of smaller corporations or individuals, but that the reason this must be so is that these corporations are people with rights.

Fiduciary Responsibility

It’s worth noting that the ruling in Bellotti had already established, for better or worse, that corporations could speak on political matters. In fact, that ruling even allowed corporations to expend funds on matters that were not related to their purpose of business.

In learning this as I researched this article, I was quite surprised. It seems to me that such “speech” is, if nothing else, a violation of the corporation’s fiduciary responsibility to its stockholders. If I held shares in a corporation that was speeking on matters unrelated to its business, I might have questions to ask of its board of directors. If the Supreme Court is going to worry about the rights of the individual, what about upholding the right of an investor to have his money spent for the purposes of the business.

Time and Manner

Were this a case about a loudspeaker (what Merriam-Webster.com defines as “a device that changes electrical signals into sounds loud enough to be heard at a distance”) rather than a loud speaker, it would have been subject to time, place, and manner restrictions. It is not obvious to me why having corporate spending limits is not a manner. It’s like a teacher of a young child saying, “Just a minute please. Let’s go in order and let everyone have their turn.”

National Security

A great many corporations are foreign-owned. In that regard, this ruling unilaterally yields a substantial amount of power in US elections to foreign powers. The ability to sway votes in large numbers through massive expenditures is a substantial threat to the autonomy of the US. Decisions about politics in the US must remain in the control of US citizens, and the Supreme Court has weakened that protection severely.

As an example, Professor Jamin Raskin of the American University’s School of Law, was on C-SPAN recently discussing this issue. He observed that in 2008, Exxon/Mobile had $85 billion in revenue, and that if they were to spend even 10% of that, or $8.5 billion, on advertising within the US, they would have outspent what Obama, McCain, and all candidates for the House and Senate spent. I don’t recall if he said explicitly, but the quite obvious implication was that if for the same reasons we wanted to limit spending on petroleum-based products through government action, perhaps even for reasons of national security, candidates or even sitting politicians might be approached with the choice of aligning with the oil industry or finding themselves at the wrong end of a massively negative advertising campaign.

Rotting Foundation

Consider that what is at stake is the very foundation of our democracy. It is a well-established fact that people are swayed by advertising. In fact, it’s common for pundits to compare not the arguments to be made by candidates but the size of their advertising budget in predictions about who will win.

The Supreme Court swears this oath of office:

I must say, seeing this oath, my first thought was that they have certainly upheld the part about making sure their notion of justice was “without respect to persons.” I wondered for a moment if they had perhaps misunderstood the intent of these words as somehow requiring that they respect corporations more than they respect people.

Prior to this ruling, corporations could already speak. What this ruling does is to say there is no bound on how much they can speak.

In my personal opinion, through this ruling, those voting in the majority on this ill-advised ruling have violated their oath of office and placed the country in grave danger. Theoretically, they could be impeached for such a thing. In practice, I’m sure the Republicans will find a way to forgive them. And since they presently enjoy a 41-59 majority, there’s no point in worrying about that.

Footnote

In researching this article, I ran across an interesting analysis entitled Chief Justice Roberts: Judicial Activist for Coporate Power by Robert A. G. Monks and Peter L. Murray. It was written last year, before this ruling, but contains a lot of reasonably well-documented historical information on this and related topics.