This Senator brought to you by Gazprom | The Economist

This Senator brought to you by Gazprom | The Economist

• Jan 22nd 2010, 22:45 by The Economist

MARK KLEIMAN points out an interesting wrinkle in the Supreme Court's decision that corporations can spend as much as they want on any kind of political advertising they like:

As far as I can tell, the analysis doesn’t distinguish between domestic and foreign corporations. Not that it would matter much, since a foreign corporation can always establish a domestic subsidiary, or buy an American company: Cities Service, for example, is a unit of PDVSA, the Venezuelan state oil company. So the ruling allows Hugo Chavez to spend as much money as he wants to helping and harming American politicians...

Nor is this a problem that can be handled by “disclosure.” The ad on TV praising the opponent of the congressman who did something to annoy Hugo Chavez won’t say “Paid for by Hugo Chavez.” It will say “Paid for by Citizens for Truth, Justice, and the American Way,” which in turn will have gotten a contribution from “Americans for Niceness,” which in turn will have gotten a contribution from a lobbyist for a subsidiary of Cities Service that no one has ever heard of.

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Nevertheless, this decision strikes me as wrongheaded. I'm no constitutional-law scholar. Maybe the majority opinion, written by Anthony Kennedy (pictured), is in many ways brilliant and convincing. But this key sentence is factually and logically false: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens, for simply engaging in political speech." For over a century, Congress has passed laws which fine citizens or associations for engaging in political speech in certain ways and at certain times. And yet the first amendment still seems very much in force. It had a tremendous amount of force in, for example, protecting the New York Times' right to publish the Pentagon Papers and so on.

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Restrictions on election campaigning and corporate election spending exist throughout the democratic world, and yet actual citizens maintain their ability to express their views. That's because, as John Paul Stevens said in his dissent, for-profit corporations are different from non-profit citizens' associations and from individuals. The judges' refusal to perceive such apparently elementary distinctions will lead to a vast increase in the ability of corporations to influence politics. This will prompt some to question their motivations. The decision was five to four, dividing the court along party ideological lines.