SUPREME COURT COULD GIVE CORPORATIONS MASSIVE CONTROL OVER ELECTIONS

Monica Youn, LA Times - Corporations are pitching a bizarre product -- a radical vision of the 1st Amendment. It would give corporations rather than voters a central role in our electoral process by treating corporate political spending as protected speech. If this vision becomes reality, businesses and other big-money players will spend billions either hyping their preferred candidates or running attack ads against elected officials who don't support their preferred agenda. Voters will be forced into a couch-potato role, mere viewers of the electoral spectacle bought and paid for by wealthy companies.

The Supreme Court's decision in the hotly anticipated campaign finance reform case Citizens United vs. Federal Election Commission -- which may be announced as early as Tuesday -- will show whether a majority of the Roberts court is buying their argument.
The case may be the turning point in a concerted, decades-long ideological campaign -- the "corporate free speech movement," as Robert L. Kerr and other scholars have chronicled. As far back as 1971, Lewis F. Powell Jr. (whom President Nixon would shortly nominate to the Supreme Court) sent a confidential memorandum to his friend Eugene Sydnor Jr. at the U.S. Chamber of Commerce arguing that corporate interests needed to take advantage of a "neglected opportunity in the courts." Because "the judiciary may be the most important instrument for social, economic and political change," the memo said, the chamber and other corporate interests should develop a cadre of constitutional lawyers to file lawsuits and amicus briefs to push a corporate-friendly legal agenda in the Supreme Court.. . .

Only five years after Powell sent his memo, the Supreme Court in Buckley vs. Valeo struck down campaign spending limits on 1st Amendment grounds, with the rationale that such limits "impose direct and substantial restraints on the quantity of political speech." Two years later, in First National Bank of Boston vs. Bellotti, the court held -- for the first time -- that the 1st Amendment extends to corporate political spending, striking down a law that had prevented business corporations from spending shareholder funds to influence the outcome of state ballot measures. By then Powell was on the court, and he wrote the controlling opinion in Bellotti and was in the majority in both cases.

As 1st Amendment expert Linda Berger has pointed out, the Buckley and Bellotti cases planted the seeds of three new metaphors in election law: that money is speech; that corporations are people; and that elections are marketplaces. To equate corporate campaign spending with 1st Amendment-protected speech, you must accept all three. Each, however, is problematic. . .