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Sunday, February 12, 2012

COLUMN: A problem we can fix by throwing money at it

An unusual amount of wrath seems to have been directed toward the Supreme Court in the last few weeks, following its decision to let companies spend as much as they want on political ads. Groans and furious shouts are piling up everywhere, as gloomy-faced thinkers in somber suits predict, as a result of this ruling, the Mayans will be proven wrong; the world will not end in 2012, but in 2010.

Now, it is true a vast number of reasons may be found which vociferously forbid letting companies run these commercials. Just think of all those bland McStatesmen covering the nation, who all make the same promises and wear the same brightly-colored clothes, and whose main policy goal is clean restrooms. Or maybe we could have Chinese companies open divisions here, and then buy politicians until a president disbands the army and sends Fort Knox to Beijing.

But before condemning the five guilty judges too much, one must consider that, although no one actually follows this rule, the courts are supposed to think less about the practical effects of its interpretations than about what the law actually says. And the law says “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The common arguments will now come up: the Founders did not mean for this to happen; these are activist judges overturning precedent; the First Amendment does not even apply to corporations, or at least in the same way as to individuals.

First, it is exceedingly difficult to determine original intent, and even when we can know what the Founders wanted we frequently ignore it. Do you think they were aiming for an interventionist nation with federally-funded schools, farm subsidies, and NASA? At least this time we actually pretended to look at the text of the Constitution, instead of just making a new Department of Waste.

As for the business of rejecting precedent, you really can’t complain too much. The Supreme Court has had a long and glorious history of this, and some of its most popular decisions have been the result of contradicting everything its predecessors said. If the justices of the 20-year-old Austin v. Michigan State of Commerce decision were wrong, why should we go by them?

Finally, one must remember the First Amendment itself does not make the nifty distinction between corporations and individuals; that requires some sophisticated (and some would say sophistical) arguing. Without that distinction, it does make sense to say if one person can say something, maybe a bunch of people together can say something.

This is also not the first time corporations have had these rights applied to them. Anyone who bothers to look at what the justices said will learn that First Nat Bank of Boston v. Bellotti did this in 1978, although to a limited extent. And if we do deny the First Amendment to corporations, what about our news media? The New York Times and FOX are corporations; why can they say whatever they want but not Halliburton and Walmart? Perhaps this page of the newspaper should just shut down 30 days before a primary. Or for that matter, the whole paper; it’s not like this is the only opinion page.

Of course, maybe the judges were wrong; I am by no means an expert in this matter. But one must at least admit they had some justification for their decision. And companies were already finding all kinds of ways to get around the existing rules, so this might not even have a major impact. Maybe the midterms won’t be a bigger disaster than they usually are. Maybe, if we’re really lucky, we still have two more years before the world ends.

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