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.
Eight justices did concur that Congress has the responsibility to require corporations to disclose their spending and to run disclaimers with their advertisements, for "disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way," Justice Kennedy wrote. The majority referenced a myriad of past decisions that recognize the First Amendment rights of corporations. Justice Stevens conceded that "we have long since held that corporations are covered by the First Amendment."
In Justice Kennedy's view, "…When the 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." While some hail the decision as the protection free speech -- Fox news ran a headline suggesting the founding fathers were smiling -- others see it as favoring entrenched corporate interests, while still others see it as practical to forming public policy. "Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election," Justice Anthony said during arguments. Justice Anthony was mirrored by Justice Scalia, who said: "To exclude or impede corporate speech is to muzzle the principal agents of the modern economy," Justice Antonin Scalia said. "We should celebrate rather than condemn the addition of this speech to the public debate." Senator John McCain offered criticism, although nearly not as biding as the criticism from President Obama:
I am disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions. However, it appears that key aspects of the Bipartisan Campaign Reform Act (BCRA), including the ban on soft money contributions, remain intact.
Some researchers see the decision as a throwback to the Reagan era, when his administration sought to open up the market to extremely free trade; that is, freeing business from government regulation. Interestingly, of the give justices who made up the majority in last month's case, all were appointed by Reagan or worked as young lawyers in the Reagan administration. "This is a different brand of conservatism," said Trevor Potter, an election law expert who served as counsel to Arizona Republican Sen. John McCain's election campaign. "The justices are shaped by society. Those that came after the Great Depression saw government regulation of corporations as natural and necessary. This younger generation sees it very differently. They have a real distrust of government." (Savage) This distrust of government manifests itself, first and foremost, as distrust of big government. The belief that the "invisible hand" of the free market will allocate resources and wealth in an equitable manner is one that goes back to the foundation of free market thinking in Adam Smith's Wealth of Nations, which, ironically enough, was published in 1776. Many argue that, in fact, big government or small government is not the issue. The issue, in other words, is not a matter of degrees or size, but, rather, type. Government, the argument goes, is merely a tool, used for different ends.
In the United States, corporations have played a major role in the development of the society, culture and state-enterprise. While, it is true, we are a nation of entrepreneurs, whose companies ought to be free to disseminate opinions and lifestyles freely, there are some entities which have grown so large, they stand to exploit decisions such as these. This decision affects all small businesses, colleges and other associations of persons who have become incorporated so as to receive the benefits of being an artificial person, but it is those "too-big-to-fail" corporations who control the volume of assets enough to easily sway the outcome of elections. Although there historically have been restrictions on campaign contributions such as those featured in the January 21, 2010 ruling, campaign contributions on behalf of certain candidates by corporate players, it is generally conceded, hold a considerable amount of sway over the election cycle in the United States.
That such a legislative and judicial development took place at the expense of the Fourteenth Amendment, meant to protect freed slaves, flies in the face of what the Constitution stands for. It is important for individuals everywhere to internalize the fact that, indeed, much information they receive regarding their election candidates might be contrived from the money of lobbyists and corporate interests. This, to be sure, is really nothing new in the makeup of the United States political system.
1. Bravin, Jess. (17 September 2009) Sotomayor Issues Challenge to a Century of Corporate Law. Wall Street Journal. Online Accessed at: http://online.wsj.com/article/SB125314088285517643.html
2. Smith, Bradley. (10 September 2009) Corporations Are People, Too. National Public Radio. Online Accessed at: http://www.npr.org/templates/story/story.php?storyId=112711410
3. Hammerstrom, Doug. (2002) The Hijacking of the Fourteenth Amendment, Reclaim Democracy. Online Accessed at: http://www.reclaimdemocracy.org/personhood/fourteenth_amendment_hammerstrom.pdf
4. Kirkpatrick, David. (21 January 2010). Lobbyists Get Potent Weapon in Campaign Ruling, New York Times. Online Accessed at: http://www.nytimes.com/2010/01/22/us/politics/22donate.html?fta=y
5. Liptack, Adam. (21 January 2010) Justices, 5-4, Reject Corporate Spending Limit, New York Times.