Who knew that decades-old campaign-spending limits threatened to prevent newspapers from opinionating on candidates for public office?
That's the hideous boogeyman that Chief Justice John Roberts raised last week in justifying the Supreme Court's decision to toss restrictions Congress had placed on direct corporate spending to sway elections.
In arguing to uphold the limits, Roberts wrote in a concurrence, the government put forth "a theory of the First Amendment that would allow censorship not only of television and radio broadcasters, but of pamphlets, posters, the Internet and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern."
That theory, he ominously warned, "would empower the government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations -- as the major ones are."
Roberts' concern for editorialists and the role we play in "the vibrant public discourse that is at the foundation of our democracy" is quite touching. But, in the almost four decades since Congress started requiring corporations to channel their advocacy spending through political action committees, has anyone seriously suggested that media conglomerates should have to pay for their election commentary through PACs?
To echo Roberts' language, his claim is one that "I find quite perplexing."
Editorialists debate among ourselves whether it's helpful or merely arrogant for us to recommend for or against candidates seeking election. We have resources to examine records and ask hard questions with the goal of providing an assessment that voters can add to the information they consider before casting their ballots. But some readers want just facts, not others' opinions; some say they don't want their newspaper "telling them how to vote."
But that wasn't Roberts' concern. Even though federal campaign finance restrictions don't apply to newspaper editorials, opinion pieces or letters to the editor, he insists that's "simply a matter of legislative grace."
And, you know, Congress could change its mind.
Just like the court, I suppose.
Roberts spent most of his 14-page concurrence in Citizens United v. Federal Election Commission explaining that respect for precedent loses its importance when those precedents are just wrong.
"We must balance the importance of having constitutional questions decided against the importance of having them decided right," he wrote.
The key offender was a 6-3 decision in 1990 upholding Michigan's ban on using corporate treasuries to promote or defeat candidates. That ruling included two "spirited dissents," Roberts said, and has been "the consistent subject of dispute among members of this court ever since."
But it's through personnel changes that those dissenters -- Justices Antonin Scalia and Anthony Kennedy -- gained colleagues who also object to campaign finance limits.
Justice Clarence Thomas joined the court in 1991, Roberts in 2005 and Justice Samuel Alito in 2006.
Justice John Paul Stevens is the only member left from that 1990 majority -- and he wrote a most spirited dissent in Citizens United.
"The court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress' most significant efforts to regulate the role that corporations and unions play in electoral politics," Stevens wrote.
And, he said, "While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics."
Roberts, for his part, said the court struck down limits on direct corporate spending only after careful consideration, two rounds of briefing, two oral arguments and 54 amicus briefs. I'm skeptical whether any of that influenced what he considered the right answer.
Opinion writers will continue to opine on whether last week's ruling advances "uninhibited, robust and wide-open" public debate or further distorts the ability to influence electoral politics. We'll continue to explore what the appropriate responses should be from lawmakers, corporations, interest groups and voters. We'll continue to debate the use and abuse of judicial activism.
But I doubt most of us imagined that the constitutional consternation surrounding "Hillary: The Movie" was about a potential government crackdown on opinion pages.
Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Readers may write to her at 400 W. 7th Street, Fort Worth, Texas 76102, or via e-mail at lcampbell@star-telegram.com.
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