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Corporate spending: A full First Amendment or none at all

Posted: February 6, 2010 4:38 p.m.
Updated: February 7, 2010 4:55 a.m.
James Madison, the Constitution’s principal architect, believed “The freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments.”

In an early version of a bill of rights, he helped cement the idea that, “The people shall not be deprived or abridged of their right to speak, to write or to publish their sentiments and freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

Knowing that the freedoms of speech and press are co-equal in necessity and worth, Madison would have called Jan. 21, 2010, a day of celebration.    

Summarizing the High Court’s landmark redress: Corporations and unions are now able to freely spend from their general treasuries on ads that independently advocate or oppose the election of federal candidates. Likewise, the prohibition within McCain-Feingold that banned corporate-funded, issue-oriented ads 30 days before a primary and 60 days before a general election was also found unconstitutional.

As Justice Antonin Scalia explained, there has been no opposition to the idea that corporations enjoy freedom of the press, as assured by the First Amendment. Now, restoration of that amendment’s full intent for all has begun.  Individually and now collectively — as corporations are basically legally recognized collections of persons — people can publicly hold elected officials accountable by voicing their opinions through means generated by the free market.  

As controversy attends the court’s recognition, let us understand particular dangers averted by that decision.  

McCain-Feingold empowered government to kill the publication of corporate-funded literature that called for the election or defeat of a candidate.

Said differently, even freedom of the press hung precariously. The Federal Election Commission flirted with that license in 2004 by investigating if a book by George Soros that was critical of George W. Bush violated campaign laws. That coercion threatens to determine content as well.

“Premised on mistrust of governmental power,” opined Justice Anthony Kennedy, “the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.”  

Marching beyond who can speak and how, that reached to control what was said by imposing “restrictions on certain disfavored speakers.”

The court also righted government’s “constitutional wrong when by law it identifies certain preferred speakers.” Under McCain-Feingold, government censored all but media corporations from enjoying their full First Amendment rights.

Hence, a corporation that owns a newspaper or television network retained its First Amendment rights. Yet a corporation with a like business pursuit but no media outlet in its framework was prohibited from educating about the identical issue.

“This differential treatment cannot be squared with the First Amendment,” Kennedy wrote.  

The ACLU, U.S. Chamber of Commerce, etc., underscored the non-partisan virtue of dismantling that provision by urging the Court to do so.  

The bottom line, Patrick Henry declared: “The Constitution is not an instrument for the government to restrain the people, and it is an instrument for the people to restrain the government.”

Now government must reckon with that.        

F. Andre Hollings is a Newhall resident. His column reflects his own views and not necessarily those of The Signal.


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