Citizens United and Conflicts of Interest Law
The <a href="http://www.scotusblog.com/wp-content/uploads/2010/01/citizens-opinion.p…; target="”_blank”">Citizens
United
decision</a> from the Supreme Court this week says that, for the
purpose of First Amendment free speech rights in a political context,
corporations are persons. Until now, they were considered fictional
persons, since they lack such things as arms, brains, and the right to
vote.<br>
<br>
Will the majority's conclusions affect conflicts of interest law?
Here's a conclusion from page 40, ending the decision's first section.<br>
<br>
<ul>When Government seeks to use its full power, including the criminal
law, to command where a person may get his or her information or what
distrusted source he or she may not hear, it uses censorship to control
thought. This is unlawful. The First Amendment confirms the freedom to
think for ourselves.<br>
</ul>
Does this mean that local and state government cannot prevent us from
hearing what people with conflicts of interest, no matter how
distrusted, have to say? Will this paragraph be used to knock down
conflict of interest laws?<br>
<br>
The first response that comes to mind is that the First Amendment right
of the public to hear speech must be balanced against the public's
right to have elected officials not be unduly influenced, either by
others or by their own interests. However, on page 45, the court
emphasizes that the First Amendment trumps
concerns about influence on government officials.<br>
<br><ul>
If elected officials succumb to improper influences from independent
expenditures; if they surrender their best judgment; and if they put
expediency before principle, then surely there is cause for concern. We
must give weight to attempts by Congress to seek to dispel either the
appearance or the reality of these influences. The remedies enacted by
law, however, must comply with the First Amendment; and, it is our law
and our tradition that more speech, not less, is the governing rule.<br>
</ul>
Elected officials already argue that they have legislative immunity
from government interference (even from their own government, even from
laws passed by their own body) and the right and obligation to represent their
constituents. Now they can, by inference, argue the First Amendment too
when they defend their right to participate in a matter where they have
a conflict.<br>
<br>
According to <a href="http://www.nytimes.com/2010/01/23/us/politics/23states.html" target="”_blank”">an
article in today's New York <i>Times</i></a>, Tom DeLay's lawyer is already
arguing that the decision undermines the government's money laundering
charges against his client. What's a little conflict compared with
money laundering?<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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