The part of the McCain-Feingold law struck down in Citizens United contained an exemption for news reports, commentaries and editorials. But Justice Thomas said that reflected a legislative choice rather than a constitutional principle.
He added that the history of Congressional regulation of corporate involvement in politics had a dark side, pointing to the Tillman Act, which banned corporate contributions to federal candidates in 1907.
“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”
It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.”
Justice Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process.
“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”
“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.
Like so many Democrats used to be (before they realized the mileage they could get by pandering to minorities), Tillman was quite the racist.
The student of history may also recall that the freedom of another group–churches and pastors–was attacked in 1954 for similar reasons by yet another Democrat. The reason churches are restricted from speaking out against immoral candidates today is because Senator Lyndon B. Johnson wanted to muzzle a nonprofit group that was criticizing him, so he sneaked a provision into tax law in 1954.
Churches are not constitutionally prohibited from denouncing immoral candidates; on the contrary, the Johnson legislation is itself unconstitutional, and that is why the Alliance Defense Fund began an initiative two years ago to push this matter to the Supreme Court where it can be overturned. This unconstitutional prohibition against speaking for or against candidates has also been misused to make people believe that churches and pastors can’t even speak out on ballot initiatives–something that is completely false.
So the next time some liberal wails and moans over how bad this SCOTUS decision is and how the evil corporations will have too much freedom, remind them of the underhanded history liberals have had in trying to use the legislative branch to quash constitutional liberty.