The XX Factor

Citizens United: The Supreme Court Knocks Out Campaign Finance Reform

The Supreme Court just struck down campaign finance reform . No modesty or narrow remedy here: This negates the main limits on corporate and union spending in the 60 days before a general election that Congress passed in 2002. The court overruled its own previous decisions allowing that legislation to stand. It’s a Kennedy opinion and a 5-4 split, conservatives vs. liberals, except for one minor part that lets stand the disclosure requirements Congress imposed. On that one, it’s everyone except Justice Thomas. You’ll be seeing a lot more attack ads, but at least you’ll know where they’re coming from.

The first part of the opinion is all about justifying why the court has to rule so broadly: “It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications.” The court didn’t go for the idea that the anti-Hillary movie isn’t really an attack ad: “There is no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton.”

The heart of the analysis is that money is speech, Congress suppressed speech, and that is unconstitutional. The limits on spending 60 days before an election aren’t a sensible effort to staunch the flow of money into elections, with all the influence-pedding that brings. They give rise to “classic examples of censorship.” That censorship is “vast in its reach.” Here are Kennedy’s examples of what the law prohibits, and shouldn’t:

The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech.

The majority says it doesn’t matter that the corporations can spend all the money they want through PACs, because they aren’t the PACs and their PACS aren’t them.

So there you have it: a knock-out blow to campaign finance reform. Just in time for the midterm elections.