Jan. 6, 2011
UI law professor looks for middle ground in corporate campaign donation decision
Thanks to a Supreme Court ruling earlier last year, the 2010 elections were awash in millions of dollars that came from publicly held corporations previously prohibited from donating money to political campaigns.
But University of Iowa law professor and First Amendment expert Randall Bezanson said the decision in Citizens United v. FEC may be open to later challenges that could restrict corporate spending in election campaigns (though unfortunately, probably not soon enough to prevent Americans from being relentlessly bombarded with still more campaign commercials, robo-calls and junk mail in 2012).
The Citizens United case was handed down in January 2010 and struck down earlier legal precedents that prevented corporations from donating money to election campaigns. In a 5-4 decision, the Court held that corporations enjoy the same First Amendment protections of freedom of speech as any individual citizen.
In a paper published in the Iowa Law Review, Bezanson acknowledges that Justice Anthony Kennedy’s opinion is “take no prisoners,” boldly attempting to make a broad and definitive statement. In it, Kennedy disposes of the previous idea that corporations could not give money to political campaigns because individual shareholders did not invest in the company with the belief that their money would be used to fund a candidate they may not support.
It also tossed out the idea that freedom of speech only applies to speech that can be traced to an individual. This ruled out corporate donations to political campaigns because those donations could not be traced in such a way.
Bezanson said Kennedy’s language in dismissing those notions is definite and attempts to leave no room to maneuver or find middle ground for restricting corporate campaign donations to politicians. But he said the opinion is muddled and poorly argued. Its language and reach are over broad and Kennedy makes disputable assumptions about earlier Court decisions. Plus, he was the only justice who signed on fully to his opinion -— three of the other four justices in the majority wrote concurring or separate opinions, which dilutes the strength of his arguments.
Bezanson said that it’s those opinions, especially one written by Justice Antonin Scalia, that could provide the middle ground Kennedy tried so hard to eliminate. Scalia’s opinion, he said, argues that corporate free speech rights are more limited than the sweeping rights that Kennedy gives them, and is also built on more solid legal ground.
In Scalia’s view, a corporation does have free speech rights and cannot be denied First Amendment rights simply because it is a corporation, thus joining with Kennedy in overturning previous legal decisions. But he said that at the same time, simply being a corporation does not automatically guarantee it has free speech rights. Bezanson said something more is needed to justify a corporation donating money to a political campaign, and while Scalia does not go into what that something more might be, the opinion leaves room for future Courts to find a middle ground that would limit corporate influence in political campaigns.
“There is reason to believe that more remains to be said in the future, about traceability, representativeness, individual freedom of speech and about different levels of First Amendment protection for a corporation’s speech,” Bezanson said.
“I hope so, anyway.”
STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Iowa City, Iowa 52242-2500
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