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A Different Take on the Supreme Court Ruling

By Kevin Ellis
Kimbell Sherman Ellis, LLP

It’s always great when an event throws the usual (and boring) left vs. right equation off its moorings. Such is this week’s Supreme Court 5-4 decision in which the court said the government cannot restrict the ability of corporations and unions to spend money on elections.

I have lots of liberal friends who say this is the death of Democracy and the Democratic party. Why? Because the Republicans and their corporate friends have all the money! Put aside the usual (and also boring) Republican retort that the liberal labor unions do the same thing. Are we really going to make judicial decisions based on what we think might happen?

There is either a First Amendment prohibition against the abridgement of free speech or their isn’t. Even if my friends are right, isn’t that an outcome-based reason. Are we going to chip away at the first amendment protections because we think it will create an outcome we want. I’m not so sure.

And is this court decision going to make things worse than they already are? There seems to be some notion that our system today works. Take it from someone who sees it every day. Politicians at every level spend a majority of their time raising money. They figure out how to get around the spending laws by creating PACS and other groups. They hate the system and would rather spend their time governing.

One of the reasons Sen. Chris Dodd of Connecticut is in political trouble and is retiring is because the public perceived him as in the pocket of the banks and bankers, many of whom are headquartered in his state. True or not, I guarantee you Chris Dodd spends A LOT of time with the financial services industry as the chairman of the Senate Banking Committee. And I guarantee you he calls them A LOT, asking for money – under the current system.

And the people in my business of communications and politics don’t like going to fundraisers or getting the solicitation calls. We’d rather work. Vermont actually has a really good law than bans its politicians from asking a registered lobbyist for money during the state’s legislative session. That cleans things up fairly well. But don’t be fooled. It doesn’t stop them from forming a PAC and soliciting money anyway.

Take a look at Glenn Greenwald’s piece in Slate about this. And Eliot Spitzer’s comments are good too. Can this ruling really make the system worse than it is? I don’t see how it can get worse.

I am really skeptical about adjusting the first amendment because of the outcome we want. The society surprises you. Corporations are already voicing their displeasure – under the first amendment of course – with the ruling, saying they want out of the game. IBM has always said it doesn’t contribute to candidates.

You might see a wholesale rejection of the system as a result of this ruling. You might see a vigorous debate about it. TV commercials, radio talk shows, web ads, Facebook chat.

Will some Democratic lawmaker lose their seat because of negative ads paid for by some corporate raider? Sure. (That happens in every election already) Will some corporate lobbyist threaten a member of Congress with a bag of campaign money if he doesn’t vote the way that lobbyist’s corporate client wants? Yes. And that happens today. But remember that former Congressmen William Jefferson (cash in the freezer) and Randall Duke Cunningham, were caught and convicted.

Predicting the outcome of Supreme Court cases under the First Amendment is risky business, especially when you are trying to control people’s speech. It may be the outcome you want today. But tomorrow, it might be something you hate.


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