The news of the week is the Supreme Court's January 21 ruling in Citizens United v. Fedaral Election Commission. The Court said the First Amendment allows corporations to spend unlimited amounts of money on political campaigns. The decision overturns two Supreme Court precedents, one from 1990 and the other from 2003, and gives corporations more rights to influence campaigns than any ruling in history.

This opinion has come under fire as commentators suggest that corporations will drown out political opponents, and that our debased political culture will sink further into the sewer. The concern is also that the Supreme Court continues to believe that corporations are entitled to constitutional rights just as people are. There is enough commentary on these issues to go around for everyone, including an intellectually honest defense of the opinion from a constitutional lawyer.
Here is my take:

1. The conservative majority on the Supreme Court is taking an absolutist view on the First Amendment. The free speech clause of the Constitution is written in absolute terms ("Congress shall make no law ..."). But most constitutional provisions contain similar language, and those provisions are guided by balancing tests devised by the Court in order to ensure that the public's interest in civil liberties is balanced by the government's need to maintain order. The irony is that the Court takes an absolute view on the First Amendment when it comes to protecting corporate interests. This is not a coincidence, at least four Justices on the Court are hard-core conservatives, the product of the activist wing of the Republican Party. While the Supreme Court finds ways to limit the free speech rights of students, publicized trials and the rights of government whistleblowers, corporations have unlimited spending authority under the First Amendment despite Congressional findings that this kind of spending can interfere with the democratic process. Students can be suspended for speaking out of line in school or engaging in parody, and government workers can be fired for whistleblowing in certain instances, but if ExxonMobil wants to spend all its money on a political campaign to scuttle anti-global warming efforts, the government has no authority to reign it in.

2. In justifying its decision to overturn one of its prior rulings, Austin v. Michigan Chamber of Commerce, the current Supreme Court suggests Austin is outdated. Austin was decided by different Justices who have since been replaced by Republican appointees. The Court in Austin said that unlimited corporate spending on campaigns can have a distorting effect. The current Court says this about Austin:

Austin is undermined by experience since its an-nouncement. Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.

Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effectiveway to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds.

Can you believe this? Thirty minute television advertisements are enough to educate the public on political candidates? This is the kind of reasoning from a Supreme Court that is now allowing corporations to spend unlimited monies on campaigns. No one ever learned anything from a television commercial. Which brings me to number 3.

3. Putting aside legal issues for a moment, the reason why campaign finance laws are beside the point is that the only reason we have to curtail spending on campaigns is because campaigns are so expensive. And the reason they are so expensive is that, in addition to large-scale campaigns which require employees and printing presses and other expenses, a good deal of the campaign money is directed toward television advertisements which teach us nothing and distort the issues and push voters toward the candidate with the slickest campaign strategy or multi-media visuals. If much of the public is undecided on a presidential campaign only a few weeks before the election, it is no wonder the ads become more and more offensive and misleading in the days leading up to the big day.

4. Another lesson from this decision is that presidential elections are even more important than we are giving them credit for. I have written about this before. If you hate this Court decision and do not think corporations should have unlimited spending authority in political campaigns, then remember that in 2012, when the next campaign rolls around. The President appoints Supreme Court Justices. This issue is downplayed during the campaign. But once the Justices join the Court, they stay on for life, issuing rulings that could violate everything you stand for. This was a 5-4 decision; it easily could have gone the other way. It did not, because President Bush appointed two men to the Court, both of them staunch conservatives. One of those Justices replaced Sandra Day O'Connor, who probably would not have voted with the majority on this one.

5. This brings us to my fifth point. Justice John Paul Stevens wrote a 90 page dissent. He is almost 90 years old. I would like to see men half his age write 90 page dissents. Justice Stevens is probably going to retire soon. He is also one of the best guys on the Court. Here is part of his opinion:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests ofeligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.” The Court today rejects a century of history when it treats the distinction between corporate and individual campaignspending as an invidious novelty born of Austin v. Michigan Chamber of Commerce. Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law[.]

Do you feel like everything is going to crap? It is. A permanent conservative majority on the Supreme Court is no picnic for those of us who value civil liberties and a workable Constitution. The only guarantee that Obama can give us is Supreme Court appointments that do not further distort constitutional doctrine. There is no guarantee that any President will make a Court appointment. Obama has already appointed one. With Stevens close to retirement, he will probably appoint another. Stevens' replacement will not change the liberal-conservative balance on the Court. One of these days a conservative will retire. They can't serve forever.