Citizens United and Conflicts of Interest Law

The Citizens United decision 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.

Will the majority's conclusions affect conflicts of interest law? Here's a conclusion from page 40, ending the decision's first section.

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.

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?

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.

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.

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.

According to an article in today's New York Times, 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?

Robert Wechsler
Director of Research-Retired, City Ethics

---