July 28, 2009
Earlier this year, at Supreme Court oral argument in the case of Citizens United v. Federal Election Commission, the government raised eyebrows by arguing that it believed that it can constitutionally ban the publication of books (if, as is always the case, the publisher is a corporation) that contain even one line arguing for the election or defeat of a candidate for federal office. The government based its belief on the Supreme Court's 1990 decision in Austin v. Michigan Chamber of Commerce, which upheld a blanket ban on corporate political spending in order to prevent "distortion" of campaigns. Faced with the full constitutional ramifications of Austin - for the government's position flows naturally from Austin - the Supreme Court asked the parties to reargue the case on September 9, to consider whether Austin should be overruled.
Austin was based on the assumption that the government could limit some speech in order to enhance the voices of others, although the case tried not to frame it that way. Rather, the Austin Court argued it was dealing with a "different type of corruption, the corrosive and distorting effects of immense aggregations of wealth. ." To most people, that sounds like an egalitarian argument, not one about "corruption." Which would be fine - it is perfectly acceptable to favor things on egalitarian grounds - except that the First Amendment to the Constitution appears to forbid the government from making such determinations.