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February 18, 2010

Adkison: The truth of campaign finance

— “You lie!” Remember that?

Do you remember the name

of the man who uttered those

words? Maybe it would help if

you had a hint: he was a member

of the U.S. Supreme Court.

Does that help?

OK, it was Joe Wilson, a Republican

House member, who

yelled the exact phrase “You lie”

to President Obama when he

gave his major speech to a joint

session of Congress on health

care earlier in the year.

Apparently, though, calling

the president a liar is becoming

business as usual when he appears

before a joint session of


About a week ago, the president

gave his first State of the

Union Address (the message is

required by the Constitution).

Since the Supreme Court just recently

struck down portions of

federal law regulating corporate

political spending, the president

saw fit to criticize the 5-4 ruling.

His speech was delivered before

a joint session of Congress,

but his Cabinet, the diplomatic

corps, and Supreme Court justices

are also invited. Although

the president spent only two

sentences of the entire speech on

the court’s opinion (Citizens

United v. FEC), it was too much

for Justice Alito (sitting among

several other Supreme Court

justices). The camera caught

him wincing and mouthing the

words “not true”— twice. The

other justices sat (as they did all

night) sat stone faced.

While Alito’s reaction got

some media attention, much of

the reaction focused on President

Obama publically criticizing

a Supreme Court ruling. One

“legal expert” quoted by the

Washington Post noted that he

could not recall a president

doing such a thing. Ouch.

Actually, even a quick historical

search would show that not

only has it happened, but it is

not that rare. Several modern era

presidents (beginning with FDR

and including others such as

Eisenhower and Reagan) went

public with their criticisms of

court decisions.

If you care to wade through

the recent case you’ll have to

read about 100 pages written by

Justice Kennedy (the swing

vote) and supported by four of

the most conservative justices

and another 100 pages written

by Justice Stevens leading the

liberal bloc (Kennedy was the

swing vote).

Stevens admits (there is no

denying it) that the court has for

a long time granted constitutional

protection to corporations

(they ruled in 1886 that when

the 14th Amendment referred to

a “person,” this covered corporations).

What the conservatives

did with that old case was to

combine it with a cliché, and

using logical analysis they concluded

that it was unconstitutional

to prevent corporations

from using their profits for political


Here is how they reasoned:

Money talks; talk is speech;

speech is protected by the first

amendment; and, therefore, the

portion of federal law restricting

such corporate spending is unconstitutional.

While this reasoning

raises many questions,

let’s focus on two.

First, it was the Fuller Court

which ruled that corporations

were “persons” (in the constitutional

sense). During that time

there were about 12 major monopolies

in the United States.

By 1905 that number had increased

to around 300.

Furthermore, the Fuller Court

didn’t stop with just providing

constitutional protection for corporations,

it all but halted Congress

from regulating them. In

1895 it ruled that the Sherman

Anti-Trust Act (outlawing monopolies)


not apply to

the E.C.

K n i g h t

C o m p a n y

(which refined


in spite of

the fact that

the company


98 percent of

sugar prod

u c t i o n !

When the

state of New York passed a law

(unanimously) regulating unsanitary

and unsafe working

conditions in bakeries, the

Supreme Court struck that down

on dubious constitutional


In other words the Fuller

Court was not acting out of fairness,

it was demonstrating a

clear corporate bias, which is

why many of its decisions were

subsequently overruled.

Secondly, the logic of treating

campaign contributions as

speech is based on a cliché,

which some would argue is by

definition false. Americans

(conservatives, liberals, whatever)

should demand more from

their highest court than clichéd

thinking. But, even accepting

the assumption that spending is

speech, the court does not allow

all speech.

If individuals can be limited

in what they say, corporations

should also be subject to limitations.

Accepting this, the only

question is not if corporations

can be regulated, but how?

That, however, was not the approach

taken by the five justices

in the recent decision.

Finally, the court had, at least

three times prior to its latest

case, upheld restrictions on such

corporate spending. It had ruled

that while it is speech, it has

been trumped by corruption in

financing campaigns (or the appearance

of corruption). Of the

16 different Supreme Court justices

who ruled on campaign finance

reform laws, 11 of those

support the restrictions, the five

voted recently to strike down.

Most justices have correctly

taken the position that if we

have a problem with corporations

and political spending, it is

the inordinate influence corporations

have on elections, not

too many unjust restrictions on

corporate behavior.

Danny M. Adkison teaches constitutional

law at Oklahoma State University.

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