Thurgood Marshall

“ To eliminate voluntary associations-not only including powerful ones, but especially including powerful ones from the public debate is either to augment the always dominant power of government or to impoverish the public debate. The case at hand is a good enough example. Why should the Michigan voters in the 93d House District be deprived of the information that private associations owning and operating a vast percentage of the industry of the State, and employing a large number of its citizens, believe that the election of a particular candidate is important to their prosperity? ”

“ Amassed corporate wealth that regularly sits astride the ordinary channels of information is much more likely to produce the New Corruption (too much of one point of view) than amassed corporate wealth that is generally busy making money elsewhere. Such media corporations not only have vastly greater power to perpetrate the evil of overinforming, they also have vastly greater opportunity. General Motors, after all, will risk a stockholder suit if it makes a political endorsement that is not plausibly tied to its ability to make money for its shareholders. ”

“ But media corporations make money by making political commentary, including endorsements. For them, unlike any other corporations, the whole world of politics and ideology is fair game. Yet the Court tells us that it is reasonable to exclude media corporations, rather than target them specially.
Members of the institutional press, despite the Court's approval of their illogical exemption from the Michigan law, will find little reason for comfort in today's decision. The theory of New Corruption it espouses is a dagger at their throats. ”

“ Despite all the talk about "corruption and the appearance of corruption"-evils that are not significantly implicated and that can be avoided in many other ways-it is entirely obvious that the object of the law we have approved today is not to prevent wrongdoing but to prevent speech. Since those private associations known as corporations have so much money, they will speak so much more, and their views will be given inordinate prominence in election campaigns. ”

“ But even if the object of the prohibition could plausibly be portrayed as the protection of shareholders (which the Court's opinion, at least, does not even assert) , that would not suffice as a "compelling need" to support this blatant restriction upon core political speech. A person becomes a member of that form of association known as a for-profit corporation in order to pursue economic objectives, i.e., to make money. Some corporate charters may specify the line of commerce to which the company is limited, but even that can be amended by shareholder vote. ”

“ Certain uses of "massive wealth" in the electoral process-whether or not the wealth is the result of "special advantages" conferred by the State-pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control. We held in Buckley v. Valeo, supra, however, that independent expenditures to express the political views of individuals and associations do not raise a sufficient threat of corruption to justify prohibition. ”

“ But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed 'to secure "the widest possible dissemination of information from diverse and antagonistic sources," ' and ' "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." ”

“ As conceded in Lincoln's aphorism about fooling "all of the people some of the time," that premise will not invariably accord with reality; but it will assuredly do so much more frequently than the premise the Court today embraces: that a healthy democratic system can survive the legislative power to prescribe how much political speech is too much, who may speak, and who may not. ”

“ But if one believes in the Court's rationale of "compelling state need" to prevent amassed corporate wealth from skewing the political debate, surely that "unique role" of the press does not give Michigan justification for excluding media corporations from coverage, but provides especially strong reason to include them. ”

“ The contention that prohibiting overt advocacy for or against a political candidate satisfies a "compelling need" to avoid "corruption" is easily dismissed. As we said in Buckley, " [i] t would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign." ”

“ The Court today holds merely that media corporations may be excluded from the Michigan law, not that they must be. We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers. ”

“ It does not endorse the proposition that government may ensure that expenditures "reflect actual public support for the political ideas espoused," but only the more limited proposition that government may ensure that expenditures "reflect actual public support for the political ideas espoused by corporations." Ante, at 660 (emphasis added) . The limitation is of course entirely irrational. Why is it perfectly all right if advocacy by an individual billionaire is out of proportion with "actual public support" for his positions? ”

“ Worse still will be the case if the government really believes itself interested in preventing all circulation of ideas; it will then stand motionless and oppressed by the heaviness of voluntary torpor. Governments, therefore, should not be the only active powers; associations ought, in democratic nations, to stand in lieu of those powerful private individuals whom the equality of conditions has swept away. ”

“ Today's opinion then continues: "Although some closely held corporations, just as some publicly held ones, may not have accumulated significant amounts of wealth, they receive from the State the special benefits conferred by the corporate structure and present the potential for distorting the political process. ”

“ The very first of these is establishing the restrictions upon speech that will assure "fair" political debate. The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition. ”

“ Those individuals who form that type of voluntary association known as a corporation are, to be sure, given special advantages-notably, the immunization of their personal fortunes from liability for the actions of the association-that the State is under no obligation to confer. ”

“ It is important to the message that it represents the views of Michigan's leading corporations as corporations, occupying the "lofty platform" that they do within the economic life of the State-not just the views of some other voluntary associations to which some of the corporations' shareholders belong. ”

“ But the fact that, even having made that first error, the Court must make yet a second in order to reach today's judgment suggests what an impregnable fortress our First Amendment jurisprudence has been. The Court's explicit acceptance of "potential danger" as adequate to establish narrow tailoring, even more than its recognition of an insubstantial interests as "compelling," greatly weakens those defenses.
Finally, a few words are in order concerning the Court's approval of the Michigan law's exception for "media corporations." ”

“ The corporate actions to which the shareholder exposes himself, therefore, include many things that he may find politically or ideologically uncongenial: investment in South Africa, operation of an abortion clinic, publication of a pornographic magazine, or even publication of a newspaper that adopts absurd political views and makes catastrophic political endorsements. ”

“ To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: _____. ”

“ But that alone is also not sufficient justification for the suppression of political speech, unless one thinks it would be lawful to prohibit men and women whose net worth is above a certain figure from endorsing political candidates. ”

“ If narrow tailoring means anything, surely it must mean that action taken to counter the effect of amassed "war chests" must be targeted, if possible, at amassed "war chests." And surely such targeting is possible-either in the manner accomplished by the provision that we invalidated in Buckley, i.e., by limiting the prohibition to independent expenditures above a certain amount, or in some other manner, e.g., by limiting the expenditures of only those corporations with more than a certain amount of net worth or annual profit. ”

“ But so are other associations and private individuals given all sorts of special advantages that the State need not confer, ranging from tax breaks to contract awards to public employment to outright cash subsidies. ”

“ V) , which we found unconstitutional in Buckley, was directed, like the Michigan law before us here, to expenditures made for the purpose of advocating the election or defeat of a particular candidate, see 424 U.S., at 42, 96 S.Ct., at 645. It limited to $1,000 (a lesser restriction than the absolute prohibition at issue here) such expenditures not merely by "individuals," but by "persons," specifically defined to include corporations. ”