Baltimore Sun: Running Attack Ads 'Perfectly Legal, Courtesy of the Supreme Court'

Opening his October 18 article on a tight House race in Maryland that's garnered national attention, Baltimore Sun's Paul West trotted out the typical liberal lament about corporate money in politics (emphasis mine):

WASHINGTON — When Baltimore-area industrialist Daniel G. Schuster's donations to Republican congressional hopeful Andy Harris reached $3,000 last summer, $600 was quickly refunded. That's because federal law prohibits an individual from giving a candidate more than $2,400 per election.

 

Then, last month, the concrete company owned by Schuster dumped $300,000 into a new pro-Harris campaign, including more than $149,000 in TV ads attacking his Democratic opponent, incumbent Rep. Frank Kratovil.

 

And it was all perfectly legal, courtesy of the U.S. Supreme Court.

 

Michael Toner, a former chairman of the Federal Election Commission, which regulates campaign money, said the injection of unlimited individual and corporate contributions in the 2010 campaign is an outgrowth of recent federal court rulings that have prompted a sharp surge in spending by outside groups.

 

The court rulings carved out "a sweet spot" in the law that have led to the creation of so-called "Super PACs," which can raise and spend unlimited campaign money as long as the donations and expenditures are disclosed and are carried out independently of the candidate they are designed to help, Toner said.

Of course by presenting the issue this way, West all but painted Schuster's political action as detrimental to democracy, rather than fundamental to it. 

But as the Court recognized in Citizens United, the "prohibition on corporate independent expenditures" that was at issue before the court was "an outright ban on speech, backed by criminal sanctions."

"Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction 'furthers a compelling interest and is narrowly tailored to achieve that interest,'" Justice Anthony Kennedy wrote for the court.

"Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion," Kennedy concluded.

The so-called McCain-Feingold campaign finance law set about defining whom the government prefers to engage in political speech during the campaign season.

This is precisely why the Court, applying the First Amendment, struck down the provisions of the law that it did in its January 21 ruling.

Of course, leaving all that aside, West's complaint makes even less sense given that, prior to the Citizens United ruling, corporations were free to form and fund their own PACs to run issue ads.

And that's precisely what Schuster did, running the ads through his Concerned Taxpayers of America PAC, not as an expenditure of his company per se.