Corporate Free Speech Decision May Usher In A New Era Of Political Rapid Responses & Heightened Public Interest To Corporate Activism

The SCOTUS decision in Citizens United v. Federal Election Commission could unleash nearly unlimited expenditures of corporate treasury funds in politics.

One view is that the full impact of the decision probably will not be limited to an unprecedented expansion of corporate political advocacy directed at policy and the election or defeat of candidates for political office.  Another view, as articulated by Dr. Stephen R. Weissman, a former associate director for policy at the Campaign Finance Institute, is that the “decision is unlikely to change the political situation on the ground very much.” Los Angeles Times, Opinion (January 28, 2010). Link: http://articles.latimes.com/2010/jan/28/opinion/la-oe-weissman28-2010jan28

In any event, the decision in Citizens United is also likely to usher in a new era of political rapid responses by savvy politicians on a range of policy issues affecting corporations.

As corporations raise their profiles, advocate and engage in politics by hitting politicians for their  positions on policy issues, savvy politicians intuitively will respond and hit back. Increased spending for corporate speech and political advertising should generate significant media coverage. That spate of news articles, commentaries and editorials on corporate public affairs matters ostensibly will heighten the public’s interest.

Heightened public interest expands the political playing field. The more intense the debates, the attacks on politicians and the  media coverage, the better for the politics in general.  Savvy politicians and candidates for political office can take advantage of the new found political play, expensed for the most part by corporate political money, and prosper!

Certainly, there will be  legitimate concerns expressed about the possible corrosive influence of corporate political money on policy making and the outcomes of elections.

But, good politicians should be ready to hit back if they are attacked by corporations. 

And, shrewd candidates for political office should position themselves to take advantage of corporate political activism.

Public Official Liability v. Corporate Free Speech-Is Liability For Damages In Politics A Concern?

The recent opinion filed by the Supreme Court in Citizens United v. Federal Election Commission certainly raises valid concerns about the influence that corporate dollars may have on campaign finance, campaign finance reform and political campaigns particularly this election year which will be dominated by federal midterm Congressional elections and state gubernatorial races. One commentator argues that the Supreme Court has “[told] corporate giants that they have a constitutional right to trample our democracy.” Robert Weissman, President, Public Citizen, “Citizens United v. FEC:Shed A Tear for Democracy,”  Huffington Post (February 1, 2010). LINK: http://www.huffingtonpost.com/robert-weissman/shed-a-tear-for-democracy_b_432079.html

The Court ruled that under the First Amendment, there is such a thing as a corporate free speech right which allows corporations to freely spend their corporate treasury dollars speaking about and advocating the defeat or election of political candidates. No doubt, the campaign finance and campaign finance reform landscapes have been altered in a dramatic and radical fashion.

But, buried in that decision is a legal issue that could be more troubling than the legal decision about the scope and impact of corporate  free speech in policy making, public affairs, lobbying and politics. It’s whether elected officials and their appointees are now exposed to liability for damages because of actions they take or decisions they make which corporations may disagree with? In other words, will those actions and decisions now be subject not only to scrutiny but also to awards for damages in lawsuits under the First  Amendment?

Lest we forget. the Court long ago held that corporations are persons that have the same civil rights protections as people. Corporations have protected Due Process rights and Equal Protection rights along with the First Amendment rights discussed in the opinion.

So what’s to stop corporations from bringing  massive liability suits against politicians or agency officials who make  executive decisions, take administrative actions, award procurement contracts or initiate any other governmental actions that corporations simply don’t like?

Clearly, corporations are now empowered to spend millions advocating the defeat of the politicians during elections. But, are they also empowered to seek damages against the politicians or their appointees for violations of  their free speech rights or political advocacy for the actions taken or the decisions made which are regarded as being adverse to their  interests?

The potential expansion of liability and the budget busting potential of such liability should be more of a concern than whether corporations will now have an expanded right to spend money speaking about and advocating the defeat or election of politicians.