Sunday, January 24, 2010


Big Supreme Court cases are too unwieldy for a simple “rightly” or “wrongly” decided to mean much. Justice Stevens in dissent lists a whole catalogue of reasons why the Court should have resolved this case without reaching the issue of corporate speech per se. I have not read those arguments, not because they may not be persuasive but because I do not care if they are persuasive. Justice Stevens may be entirely correct that the Court should not have taken up this issue at this time, and a future Court may hold that everything this Court said about the issue was “mere” dictum, worthy of little or no jurisprudential respect. But that’s not what I’m here about today.

Likewise, Justice Stevens says that the decision does harm to the Court as an institution by procedural error. That’s a big deal, and, again he may be right. So, again, the case may well have been “wrongly decided” if, absent those errors, the result for the parties would be other from what it is. And, again, I don’t care about that today. This post is about what the Court should have done if the issue were properly before it, not about whether that was or was not actually the case.

The arguments in the opinions seem to me somewhat simplistic. Clearly, the First Amendment was intended to protect the political speech of citizens, and advertisements for or against a candidate are political speech. But, as the dissent points out, we restrict the political speech of soldiers, civil servants, foreign nationals, etc., and we don’t let people electioneer right next to polling places. These are things we do to serve other societal interests and with which we have made peace. Thus, it is wrong, I think for the majority to say that the BCRA is bad because it imposes “any” restriction on political speech, but the dissent is wrong to say that it is OK because it only slightly abridges the freedom of the press. Some slight abridgements are permissible, and some slight abridgements are not. The binary arguments of both sides strike me more as advocacy, not jurisprudence.

My own jurisprudential sense sides with Justice Stevens on the procedural side. The Court should do as little as possible, and that, it seems to me, makes it difficult to defend on jurisprudential grounds the broad holding in this case. But that leaves open the question of what the law ought to be in this regard, i.e., whether the Court's holding and dicta are good or bad for America, whether or not they were right or wrong for the Court to issue. These things are not always aligned, although one hopes that the most often are.

The law is always drawing lines, and the lines almost always do some injustice. Here’s an excerpt from a hypothetical corporate prospectus for XYZ Widgets:

The greatest obstacle to the success of any American widget company is competition from cheap Chinese widgets. This competition has driven virtually every American widget maker out of business. We believe that if American trade law were changed, an American company that is set up to make widgets would have a competitive advantage over others that have closed shop and moved on. To that end, we intend to use the first $100,000,000 of capital we raise to elect legislators and a President who support tariffs on Chinese widgets. Advertising in support of suitable candidates will be a key part of our strategy. Our success as a business depends on those legislative changes, and the use of our capital to achieve it seems to us the best possible use of that capital. Shareholders should, therefore, understand that their capital will be used to influence the outcome of elections.

Conceptually, I cannot imagine a legitimate restriction on the advertising that this corporation seeks to undertake. The political change is essential to the corporation’s success, the shareholders are aware of the proposed activity – and so don’t have to invest if they want someone else to be elected – and the ads are clearly political speech on behalf of the individuals with an economic interest (as are most political interests) in the outcome of the elections in question.

Practically, however, I see the problem. If this corporation can place ads, what about the corporation whose shareholders don’t share the views of management? It’s not always so clear which candidates do or do not support things that are in the shareholders’ interests. And what about pension funds and mutual funds? Many of us are invested in companies whose identities we do not know, much less their political machinations. And then there are labor unions, where the membership or contribution may be a condition of employment? Or non-profits whose contributors don’t all share management’s politics?

Assuming some of these entities can rightly be prohibited from some political action, where do we draw the line? Can we draw it so sloppily that it catches my electioneering start-up? Or must there be an exemption for truly voluntary enterprises that have stated their political plans for all to see? What about a donor-financed non-profit that has made the same disclosures?

PACs are intended to allow shareholders to band together to support candidates, but individual contributions to PACs and contributions by PACs are limited. For me, those limits vitiate any argument about how PACs allow shareholders to do what BCRA prohibits corporations from doing. If, however, the limitations on PACS were removed, and corporations that have disclosed their intentions to shareholders are permitted to use contribute corporate funds to PACS, I don’t think I would have much objection to a requirement that PACs be the conduit for political action money. But then, why bother?

As in so many things, transparency seems to me to the key here. If a corporation clearly has political interests, and it makes clear to investors what those political interests are, and no one is forced to invest in that corporation, then I don’t see why the corporation ought not to be able to use corporate funds to advance those announced interests. Right now, we have no such law, and the Supreme Court cannot write one. If this decision is seen as the Court’s way of getting that law written, and we end up with such a law, the correct philosophical view, I think, is not to assume that the Court wants or has enabled the wholesale use of corporate funds for political purposes, but only that it has said to Congress “give it another try.” Frankly, I have not, and may not read every word of every opinion in this case. It’s only as interesting to me as it is. So I cannot say whether the Court invites or does not invite Congress to take a Mulligan. But it doesn’t matter. Congress certainly will try again, and maybe this time, they’ll get it right.

The sky is not falling.

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