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The state should respond to political speech ruling

Posted: Sunday, February 07, 2010

Last month, the U.S. Supreme Court struck down limitations on corporate and union expenditures affecting political campaigns. Handing down its Jan. 21 decision in Citizens United versus Federal Elections Commission, the nation's highest court overruled two prior cases which upheld federal laws which outright banned the expenditure of funds by corporations or labor organizations on "electioneering communications."

The Supreme Court's decision to strike down the ban on corporate expenditure has been met with a great deal of criticism. Six days later, in his State of the Union address, President Obama said, "... the Supreme Court reversed a century of law to open the floodgates for special interests - including foreign corporations - to spend without limit in our elections."

This comment apparently led Justice Samuel Alito, sitting in the House chamber, to mouth the words, "not true." Both the President's words and Justice Alito's muted response depart from the norms of etiquette as between the branches of the federal government.

The high court's ruling is a sea change in our federal election laws. Assessing the legal basis for the ruling is a prerequisite for any inquiry into whether it is good policy, and what laws might make the new situation as good as can be. Justice Anthony Kennedy, writing for a five-member majority, wrote that while, "... the First Amendment provides that 'Congress shall make no law ... abridging the freedom of speech' ... (the) prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions."

This straightforwardly explains why a majority of the high court felt the ban was unconstitutional: Because the base was complete, based on the identity of the would-be speakers, in this case corporations or labor unions. Although the campaign-finance laws at issue allowed for political action committees (PACs) to speak essentially on behalf of the corporate or labor interests behind them, this was not seen by a majority of the court as enough to meet the strict scrutiny required by the First Amendment.

Justice John Paul Stevens, in his 90-page dissent, addresses why corporations are not entitled to the same privileges as individuals. This reasoning failed to convince enough of his fellow justices, and thus appears only as a dissent. Corporations pay taxes, are subject to myriad laws that regulate their behavior and can be sued for their misconduct. Most importantly, corporations can be held criminally liable for their actions, and thus they are more similar to individuals as a matter of law than Justice Stevens hoped to convince his brothers and sisters on the high court.

As the law of the land is now that the First Amendment protects corporations' ability to expend money independently in support of or opposition to any individual's candidacy for a particular office, the next question is, what does this mean for our political system? Will the so-called floodgates of corrupting influence burst open unchecked in time to swamp this fall's elections? It is a distinct possibility, if Congress and state legislatures fail to act promptly.

Part IV of the Supreme Court's decision in Citizens United was joined in by an eight-member majority of the high court. What could possibly have brought together the otherwise deeply divided justices in this contentious case? The disclaimer and disclosure provisions of the federal statute under attack by the plaintiffs were upheld as constitutional by all but one member of the U.S. Supreme Court, and this is where policy-makers must direct their attention in the wake of this momentous ruling.

The federal law at issue currently calls for a clear statement, run for a minimum period during an advertisement, about who's responsible for the statement. The same law mandates that any group spending more than $10,000 a year on political speech file a disclosure form with the Federal Elections Commission listing the group's actual expenditure, the election to which it related, and certain contributors to the expenditure.

While the high court held that it is not permissible for the government completely to ban political speech by corporations and unions, it held that the burden imposed by disclaimer and disclosure requirements is not so onerous as to be constitutionally impermissible.

Alaska's junior senator, Mark Begich, among others, have come out in the wake of the Citizens United ruling calling for much stricter disclaimer and disclosure requirements. Many of these proposals sound like political posturing as much as good policy, and Congress and state legislatures must be careful not to try to dress up bans on corporate and union speech in transparency measures that, in effect, prevent the speech altogether. Lawmakers across the country will have to walk a fine line between protecting voters' rights to know who is trying to influence their decisions, and restrictions on speech that are tantamount to muzzling would-be political speakers.

In the Alaska Legislature our leaders have already begun considering the impacts of the Citizens United ruling on Alaska's campaign-finance laws. Given the short 90 days in which the session's business must still be conducted, I hope that work on this issue is a high priority, because it would be most unfortunate to see this fall's elections in Alaska negatively impacted by the Supreme Court's most recent interpretation of the First Amendment. Alaskans deserve a prompt response from their elected leaders.

• Ben Brown lives in Juneau.



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