The Australian

by David Weisbrot

Free speech just got a whole lot more expensive, especially where it is connected with the massive financial demands of modern election campaigns.

And making an argument for an Australian bill of rights may have just got a whole lot more difficult.

A few days ago, in Citizens United v Federal Election Commission, the US Supreme Court delivered one of its most contentious decisions since Bush v Gore and one which reveals a good deal about the differing approaches in the US and Australia to rights, regulation and the role of the courts.

In Citizens United, the Supreme Court voted 5-4 to overturn the ban imposed by the McCain-Feingold Bipartisan Campaign Reform Act 2002 on electioneering communications on TV paid for by corporations or trade unions, where the message is clearly "an appeal to vote for or against a specific candidate".

The case arises following the production of a stridently anti-Hillary Clinton documentary called Hillary: The Movie by Citizens United, a wealthy not-for-profit corporation.

The movie was released to coincide with the 2008 Democratic presidential primaries, but the US Federal Election Commission banned it from the airwaves, applying the legislative restrictions on partisan corporate electioneering.

The Supreme Court divided along now familiar political lines. Justice Anthony Kennedy, the swing vote and author of the majority opinion, was joined by the conservative core of Chief Justice John Roberts and Justices Scalia, Alito and Thomas.

The minority was led in dissent by Justice John Paul Stevens, with whom Justices Breyer, Ginsburg and the most recent appointee, Justice Sonia Sotomayor, agreed.

The central issue was whether corporations should enjoy the same largely unfettered right of free speech accorded to individuals.

Writing for the majority, Justice Kennedy argues that the first amendment equally "prohibits congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech".

And it's the case that in a number of other contexts, corporations have been extended free speech rights, although subject to a reasonable degree of regulation.

In the lead opinion for the minority, Justice Stevens argued that the congressional restrictions on corporate speech in this instance were sensible and reasonably calibrated to deal with the mischief identified by congress.

He writes that although corporations "make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races".

President Barack Obama, pursuing a more aggressive populist line in recent times against the pernicious influence of Big Money and special interest lobbies, described the decision in Citizens United as "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans".

All of this comes at a time when Australian governments are also struggling with the issue of regulating political donations by lobby groups, property developers and other corporate interests.

The Commonwealth Electoral Act currently relies almost entirely on a strategy of transparency, requiring public disclosure of donations and certain relationships, rather than also imposing bans or caps on donations, as is common elsewhere.

However, the 2008 report of the NSW Legislative Council Select Committee on Electoral Matters found strong support across all major political parties and independent groups for the outright prohibition of political donations, except perhaps for small donations from individuals.

In fact, the NSW Liberal Party's submission strongly echoes the views of Justice Stevens, noting that "in a democracy, only those who have the right to participate as voting citizens should be able to influence elections with their political donations. Non-citizen residents, organisations, trade union and corporations, should not be able to influence the democratic process through donations".

Unfortunately, the US decision will do little to aid the cause of advocates (such as myself) of a statutory or constitutional Bill of Rights in Australia, highlighting as it does the potential politicisation of the senior judiciary, and the increased opportunities for judges of both political complexions to submit to temptations of activism and overreaching.

At least in Australia we generally recognise that human rights are for, well, humans.

David Weisbrot is professor of legal policy at the United States Studies Centre, University of Sydney and professor of law and governance at Macquarie University. He was formerly president of the Australian Law Reform Commission.