A 29-year-old elephant was in the room while the Supreme Court heard argument recently on a major provision of the McCain-Feingold campaign-finance act. The provision says that corporations and labor unions can't pay for ads that mention the name of a federal candidate and that are broadcast 60 days before an election or 30 days before a primary.
The Court upheld the provision, 5-4, in December 2003. Since then, however, President Bush has appointed John G. Roberts Jr. as Chief Justice and Samuel A. Alito Jr. as an Associate Justice. In oral argument on April 25, both indicated a willingness to open what one news account called "a significant loophole in the measure that would invite a flood of advertising paid for by corporations and unions as the 2008 elections move into high gear."
The elephant was a dissenting opinion that been mostly forgotten, partly because it unsettles self-described conservatives -- at least those who know of it, and who regard its author, the late Chief Justice William H. Rehnquist, as one of their own.
The case was First National Bank of Boston v. Bellotti. The issue was whether the freedom of speech guaranteed by the First Amendment was abridged by a Massachusetts criminal statute barring banks and business corporations from spending money to influence voting on referendum proposals.
The Massachusetts Supreme Judicial Court upheld the statute in 1976, ruling that a corporation's First Amendment rights are limited to issues materially affecting its business, property or assets. In a 5-4 decision two years later, the US Supreme Court reversed that ruling, holding that the Massachusetts law "abridges expression that the First Amendment was meant to protect." During oral argument on April 25, Bellotti was invoked by the defendant, Wisconsin Right to Life, Inc. Bellotti upheld "corporate efforts to influence Legislative and Executive branch officials," said counsel James Bopp Jr.
The late Justice Lewis F. Powell Jr. wrote the Bellotti opinion for the Court. He relied on a crucial decision cited in a footnote: "It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886)."
Nowhere did Powell acknowledge that Santa Clara was revolutionary. The "person" contemplated by the Amendment -- adopted in 1868, soon after the end of the Civil War -- was the newly-freed slave. The Amendment's first words speak of "All persons born or naturalized in the United States."
Powell succeeded Justice Hugo L. Black. who had said in 1938, in Connecticut General Life Insurance Co. v. Johnson, that the Amendment's history "proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments."
"Early in our history," Chief Justice Rehnquist recalled in his Bellotti dissent, "Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law: as '... an artificial being, invisible, intangible, and existing only in contemplation of law.'" Despite this, he observed, the unanimous Santa Clara Court decided, "with neither argument nor discussion, that a business corporation is a 'person' entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment." Indeed, then-Chief Justice Morrison R. Waite disposed of Santa Clara with a stark pronouncement: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
In last month's oral argument, Justice Stephen G. Breyer said that what Wisconsin Right to Life was "asking for is for us ... to say either in practice or in theory, [the] McCain-Feingold campaign finance law is unconstitutional. ... If we agree with you in this case, good-bye McCain-Feingold." Justice Antonin Scalia agreed.
Rehnquist's powerful dissent of 29 years ago makes it difficult to imagine the late Chief Justice waving goodbye to McCain-Feingold and thereby inviting corporations. to drench the 2008 and subsequent elections in more torrents of money.
"A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity," Chief Justice Rehnquist wrote. "It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist."
He didn't let it go at that, adding: "I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries."
The elephant is more frequently present in the hearing room of the Senate Judiciary Committee than in the Court. Democratic and Republican members alike, ever desirous of corporate money, somehow reliably fail to ask judicial nominees -- including now-Chief Justice Roberts and now-Justice Alito -- questions like these:
• Do you agree with Chief Justice Rehnquist that corporate money in our elections poses "special dangers in the political sphere"? That "liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist"?
• Are corporations "persons born or naturalized in the United States"?
• In proclaiming, in Chief Justice Marshall's words, "an artificial being, invisible, intangible," to be a person, did the Santa Clara Justices respect the intent of the "originalists" -- the Framers of the Fourteenth Amendment -- and of the people who ratified it? Or were they "activist judges"?
• Before deciding Roe v. Wade, rightly or wrongly, the Court was fully briefed, heard argument, and long deliberated. Was the Santa Clara Court conservative in refusing hear argument in a momentous case? Or was it radical?
If the Rehnquist dissent sounds unfamiliar, you should know that it went unmentioned in the obituaries published by leading newspapers after his death in 2005. That shouldn't be surprising. In the nearly three decades since he wrote it who, exactly, would have wanted to call attention to it? After all, who -- or more accurately, what -- governs the government?
Morton Mintz covered the Supreme Court 1977-1980 while a Washington Post reporter and is a former chair of the Fund for Investigative Journalism.
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