To hear some commentators, the U.S. Supreme Court is about to gut restrictions on corporate and union spending to influence elections -- a move critics fear would upend a century-long effort to contain the power of big money to determine elections. Their proof is last week’s argument in a case in which an overzealous Federal Election Commission blocked the showing on cable TV of an unflattering documentary about presidential candidate Hillary Rodham Clinton. Several conservative justices were sympathetic to the view that corporations, like individuals, have 1st Amendment rights.
That’s a provocative possibility, and it pits campaign reformers against free-speech advocates, two groups not accustomed to disagreeing. Yet alarms about what the court might do are overstated. It does seem poised to invalidate a well-intentioned provision of the 2002 McCain-Feingold law banning the broadcast close to an election of advertisements, funded by unions or corporations, that refer to a candidate for federal office. As we have observed before, that provision goes too far in stifling speech.
The justices also could overturn a 1990 decision allowing government to prohibit corporations from paying for ads endorsing or opposing candidates. That further step is unnecessary. But even if the court decided to take it, unions and corporations would be forbidden, as they have been for generations, from contributing directly to election campaigns. As the court has recognized, contributions create more of a risk of real and perceived corruption than independent expenditures expressing an opinion about an election.
The problem with McCain-Feingold is that it bans the broadcasting of some political ads even if they stop short of endorsing or opposing a candidate. These are the spots, sometimes called “phony issue ads,” that assail a politician’s position on some issue and allow the voter to infer that the candidate isn’t worth voting for. It was this provision that regulators used to prevent a nonprofit corporation from transmitting over cable television a 90-minute attack on Clinton titled “Hillary: The Movie.”
In a 2007 case, the court narrowed the ban on “electioneering communications” to cover only those ads that were susceptible to “no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Still, applying that standard case by case would, in the words of Chief Justice John G. Roberts Jr., “put our 1st Amendment rights in the hands of FEC bureaucrats.” That’s to be avoided, but the extreme alternative is perilous as well: Giving unions and corporations carte blanche to fund candidates could result in staggering opportunities for corruption.
There is a middle ground: Unions and corporations, profit and nonprofit, should be allowed to engage in political communications without micromanagement by federal regulators, but they should continue to be barred from contributing to campaigns. That solution serves the interests of both clean campaigns and free speech, even if it means that institutions viewed with suspicion by many Americans (and not a few judges) are freer to express their opinion and, yes, influence elections.