Democrats view speech as a regulated privelege

George Will:

Last week's Supreme Court decision that substantially deregulates political speech has provoked an edifying torrent of hyperbole. Critics' dismay reveals their conviction: Speech about the elections that determine the government's composition is not a constitutional right but a mere privilege that exists at the sufferance of government.

How regulated did political speech become during the decades when the court was derelict in its duty to actively defend the Constitution? The Federal Election Commission, which administers the law that rations the quantity and regulates the content and timing of political speech, identifies 33 types of political speech and 71 kinds of “speakers.” The underlying statute and FEC regulations cover more than 800 pages, and FEC explanations of its decisions have filled more than 1,200 pages. The First Amendment requires 10 words for a sufficient stipulation: “Congress shall make no law abridging the freedom of speech.”

Extending the logic of a 1976 decision, the court has now held that the dissemination of political speech requires money, so restricting money restricts speech. Bringing law into conformity with this 1976 precedent, the court has struck down only federal and state laws that forbid independent expenditures (those not made directly to, or coordinated with, candidates' campaigns) by corporations and labor unions. Under the censorship regime the court has overturned, corporations were even forbidden to send political communications to all their employees.

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The New York Times calls the court's decision, which enables political advocacy by (other) corporations, a “blow to democracy.” The Times, a corporate entity, can engage in political advocacy because Congress has granted “media corporations” an exemption from limits.

The Washington Post, also exempt, says the court's decision, which overturned a previous ruling upholding restrictions on spending for political speech, shows insufficient “respect for precedent.” Does the Post think the court incorrectly overturned precedents that upheld racial segregation and warrantless wiretaps? Are the only sacrosanct precedents those that abridge (others') right to speak?

Alarmists say the court's ruling will mean torrential spending by large for-profit corporations. Anna Burger, secretary-treasurer of the Service Employees International Union — it has spent $20 million on politics in the last five election cycles — says a corporation will “funnel its shareholders' money straight to a campaign's coffers.” Wrong. Corporate contributions to candidates' campaigns remain proscribed.

Cleta Mitchell, Washington's pre-eminent campaign finance attorney, rightly says that few for-profit corporations will jeopardize their commercial interests by engaging in partisan politics: Republicans, Democrats and independents buy Microsoft's and Pepsi's products. If for-profit corporations do plunge into politics, disclosure of their spending will enable voters to draw appropriate conclusions. Of course, political speech regulations radiate distrust of voters' abilities to assess unfettered political advocacy.

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I think these companies will only engage in political speech as a defensive matter. There fore, when President Obama engages in demagoguery about banks, those banks will now have the right to respond.

One of the interesting points of inflection during the Obama State of the Union address last night was when he mischaracterized the Court's opinion on the matter and Justice Alito clearly disagreed with him.

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