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The First Amendment conundrum

BY SHAWN GUDE | JANUARY 27, 2010 7:30 AM

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Last Thursday night, I was on the verge of tears.

The headline on the New York Times’ website announced the ominous news: Earlier that day, the U.S. Supreme Court had overturned decades of precedents, ruling that corporations and unions could not be barred from spending money to influence a candidate election.

Infuriated, I quickly pounded out a vituperative response on Facebook: “A blatant affront to democracy. A truly tragic ruling for anyone who cares about citizen power.”

Despite my indignant reaction, I wasn’t prepared for the acerbic invectives from enraged progressives across the country. While conservatives rejoiced, some leftists claimed the ruling set the country on the road to fascism. Keith Olbermann, fast becoming the left’s most prolific deliverer of Manichean hyperbole, compared the ruling to the pro-slavery Dred Scott decision.

But despite the left’s collective hyperventilation, the wrong-minded ruling could provide an impetus for a new campaign-finance-reform movement — including here in Iowa.

That’s not to say my thoughts on Citizens United v. FEC have changed. I still think the ruling will have a pernicious effect on electoral democracy, both empirically and psychologically.

Its underlying assumption that free speech will somehow be bolstered — when increasingly powerless citizens are forced to act in a political arena flooded with lightly regulated corporate dollars — is ludicrous.

UI College of Law Professor William Buss, a First Amendment expert, fretted about the ruling’s effect on political influence and accurate information.

“I personally think there will be a big effect in the form of political ads influencing voters, with more money — a lot more money — having a lot more influence,” he wrote in an e-mail. “We have no reason to think that this money-based power will be used judiciously or that voters will carefully and critically evaluate the messages bought and transmitted.”

The decision is truly troubling.

Democracies are inherently based on equality — one person, one vote — and in a perfect world, the courts would uphold limiting the influence of corporate dollars. The result would be a more equitable political playing field for ordinary citizens and, in turn, make them more equipped to govern democratically.

The Supreme Court has long delineated different types of speech and accorded them disparate levels of First Amendment protection. Similarly, the justices would be correct in recognizing the difference between corporate-financed speech and citizen speech and the power dynamics involved.

After all, even well-organized citizen groups cannot compete with gigantic corporations and their seemingly infinite coffers.

But the nation’s highest court has spoken. Instead of legislative obstinacy, campaign-finance-reform advocates should accept the decision and look to alternate avenues.

So where exactly can reformers go after last week’s disappointing ruling? Perhaps the most encouraging alternative is amplifying the power of small donors.

While it’s not ideal (the notion that money equals speech, in my mind, is anti-democratic and morally questionable), it may be one of the best approaches. New York City’s Campaign Finance Program would serve as an excellent model: In city elections, contributions under $175 from residents are sextupled with public matching funds. Another worthy idea is allocating free air time to candidates for political messages, which would temper the need for inordinate amounts of campaign money.

Rep. Vicki Lensing, D-Iowa City, said the Attorney General’s Office and the Iowa Ethics & Campaign Disclosure Board will continue to examine the still-nascent ruling. From there, Lensing said, she anticipates lawmakers crafting a nontraditional campaign-finance-reform bill.

“It takes awhile to process and understand the full implications,” she said. “I’ll be interested to see what we can work out.”

For the sake of Iowan democracy, I sure hope they come up with something.


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