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Garbling free speech

In a case decided shortly before he became chief justice of the United States, John Roberts wrote in regard to the judicial process that "if it is not necessary to decide more, it is necessary not to decide more."

That was then. Last week he joined a 5-4 majority opinion in Citizens United v. Federal Election Commission that leaped well beyond the scope of the case before the Supreme Court to toss out a key part of the McCain-Feingold law-and roughly a century of legal precedent. It ruled that a narrow ban on pre-election independent political spending by corporations and unions violated their free-speech rights.

"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," Justice Anthony Kennedy wrote for the majority.

In that view, distinguishing between the free-speech rights of individuals and corporations is unconstitutional.

Responded Justice John Paul Stevens in his withering, 90-page dissent: "Unlike our colleagues, (the framers of the Constitution) had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind."

The law prior to Citizens United did not silence corporations or unions; McCain-Feingold banned  only the broadcast, cable or satellite transmission of "electioneering communications" paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election.

The restriction did not apply to spending by corporations’ political action committees. Nor were the free-speech rights of individual business owners constrained.

"While American democracy is imperfect," Justice Stevens concluded, "few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics."

On one point, nearly all members of the Supreme Court agreed: Lawmakers can enact specific disclosure requirements for corporate political spending or insist on prior express approval by shareholders.

For now, that appears to be the best available antidote to Citizens United.

(c) 2010 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or e-mail rbj@rbj.net.

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