Court Made Right Call to Protect Freedom of Speech

An Ad Age Editorial

Published on .

The Supreme Court's recent decision in Citizens United vs. Federal Elections Commission has many troubling aspects, but it was the right one -- for now.

On the surface, the idea of corporations directly pumping money into electoral races does seem like a bad idea. Just one example: Candidate X, from a poor district with few resources, has been railing against Industry Y. Suddenly, every company in Industry Y is pumping money. Then again, if Candidate X has been on C-Span for hours at a time lobbing charges at Industry Y, why can't Industry Y defend itself -- or go on the offensive?

Ultimately, such free-speech issues were at the crux of the case.

What the court was doing was untangling a mess of good intentions created by numerous bills. Over the years, the concept of free speech has been broadened to include many things, including commercial speech. At the same time, McCain-Feingold and similar legislation led to more curbs on political speech -- the specific speech the Founders had set out to protect when the Constitution was written.

The statutes also carved out an exception for media companies. While Dow Chemical was forbidden to use money directly from its treasury to fund ads and Three Guys in a Room Corp. couldn't run ads within 60 days of an election, General Electric's MSNBC and News Corp.'s Fox News could editorialize to their hearts' content. That is a double standard as plain as day. (And, as the court pointed out, since the government had essentially carved out exceptions for media companies, it had the power to take such exceptions away.)

Importantly, disclosure rules were left in place. What this may ultimately mean is that voters have more information about what money is coming from where when it comes to political advertising. It's hard to argue that routing money through political action committees was any more honest -- or better for democracy. And with those disclosure laws in place, corporations will have to consider the risks as much as the rewards when it comes to dabbling in politics. Voters will notice -- and may choose to vote with their pocketbooks.

We don't deny that there is much for potential for trouble here. But if politicians want to keep the corrupting influence of corporate cash out of politics, they will have to write legislation that passes constitutional muster. (Of course, they could start by refusing such money themselves.)

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