The Spigot Turns On

The U.S. Supreme Court freed corporations and unions from a century-old ban on political spending Thursday, ruling that restrictions on their electioneering expenditures violate their First Amendment Rights.

In broad terms, the 5-4 decision means corporations and unions can run all the ads they want, so long as they don't coordinate their efforts and messages and plans with the campaigns they're promoting, or with other third-party groups that have similar political interests. A corporation that wants Jane Doe for Governor, for instance, could spend without limit on TV ads to urge voters to elect her, so long as they aren't working in concert with the Doe campaign. The ruling applies to for-profit and non-profit corporations and to unions, opening a door that has been closed, for the most part, since the early 1900s. In its ruling, the court said that door ought to be open, and the penalties for passing through it abolished.

"When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."

The ruling doesn't apply to contributions. Corporations and unions are barred from giving directly to political candidates and that ban remains untouched by the ruling in Citizens United vs. Federal Election Commission.

The ruling will change campaign finance in Texas, where corporations and unions face similar restrictions to those in federal law. The March 2 primary elections might be affected — they're now less than six weeks away — but political financial practice here and across the U.S. could undergo serious changes before the general election in November. The ruling opens a new and potentially huge spigot of political money.

The 183-page ruling on expenditures prompted reactions from "cataclysmic" to "fantastic" from election law experts who were eagerly awaiting the ruling. One faction thinks the ruling will flood the political markets with corporate cash, and that that's not a good idea.

"One thing about the political system — it doesn't need more corporate or big business influence," said Fred Lewis of Austin, who lobbies on ethics and campaign finance issues. "The corporate prohibition has been upheld until today — it got upheld by conservative courts. It got upheld by liberal courts. It got upheld."

And there are the First Amendment purists who agreed with the court's view that the existing prohibitions on corporate spending in politics were unconstitutional. The majority was explicit on that point: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

Elsewhere, they wrote that transparency will protect voters from the onslaught of campaigning the ruling might unleash. "The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages," wrote Justice Anthony Kennedy in the majority opinion.

The court undid a couple of its previous rulings to get to its decision, and also unraveled restrictions — in the McCain-Feingold campaign finance laws — against running corporation- or union-sponsored issue ads in the last days before an election. That earned the majority the wrath of Justice John Paul Stevens, who wrote the dissent in the case. "Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law," Stevens wrote.

The case started with a partisan documentary called "Hillary: The Movie" that was sharply critical of the former First Lady and then-presidential candidate. Citizens United, the corporation that wanted to distribute the movie on cable, for free, through video on demand services, sued the Federal Election Commission, asking the courts if that was permissible. Lower courts said no, ruling that the documentary was designed to sway voters and that the distribution would constitute corporate spending expressly advocating her defeat. The Supreme Court agreed with that assessment of the content, but said corporations can't be barred from political speech.