Austin v. Michigan Chamber of Commerce - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 88-1569, Austin versus Michigan Chamber of Commerce will be announced by Justice Marshall.

Argument of Justice Marshall

Mr. Marshall: This case is here on appeal from the Court of Appeals for the Sixth Circuit.

In an opinion filed with the Clerk today, we hold that Section 54(1) of the Michigan Campaign Finance Act which prohibits corporations from using corporate treasury funds for independent political happenings in state candidate elections is constitutional.

This restriction serves the compelling state interest of eliminating the coercive effects of the political marketplace of great amounts of wealth that are accountable to the income of the corporate report.

The judgment of the Court of Appeals is therefore reversed.

Justice Brennan and Stevens have each filed concurring opinions; Justice Kennedy has filed a dissenting opinion in which Justice O’Connor and Scalia have joined.

Argument of Justice Scalia

Mr. Scalia: I will summarize part of my separate dissenting opinion.

It sets forth the reasons why I think today’s decision the parts from both our case precedent and logic.

Infinitely more important than that however, is its departure from long accepted premises of our political system regarding the benevolence that can be expected of government in managing the arena of public debate and the danger that is to be anticipated from powerful private institutions that compete with the government and with one another within that arena.

Perhaps the Michigan law before us which prohibits corporate campaign speech on behalf of the candidate, perhaps it has an unqualifiedly noble objective mainly to equalize the political debate by preventing disproportionate expression of corporation’s points of view, the governmental abridgment of liberty is always undertaken with the very best of announced objectives.

The premise of our Bill of Rights, however, is that there are some things even some seemingly desirable things, that government cannot be trusted to do.

The very first of these is establishing the restrictions upon speech that will ensure 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.

Perhaps the Michigan legislature was genuinely trying to assure a balanced presentation of political views.

On the other hand, perhaps it was trying to give unincorporated unions not in substantial force in Michigan political advantage over major employers, or perhaps it was trying to ensure a balanced presentation because it knows that with evenly balanced speech incumbent office holders generally win.

The fundamental approach of the First Amendment, I had always thought, was to assume the worst and to rule the regulation of political speech for fairness sake simply out of bounds.

What about the special element of corporate wealth, what would the founders of our Constitution have thought of that?

They would have endorsed, I think, what Tocqueville wrote in 1835.

He wrote, "When the members of an aristocratic community adapt a new opinion or conceive a new sentiment, they give it a station as it were beside themselves upon the lofty platform where they stand and opinions or sentiments so conspicuous to the eyes of the multitude are easily introduced into the minds or hearts of all around.

In democratic countries, the governing power alone is naturally in a condition to act in this manner, but it is easy to see that its action is always inadequate and often dangerous."

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.

While Tocqueville was discussing in that passion in that passage of the circulation of ideas, in general, what he wrote is also true of candidate endorsements in particular.

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 furhter impoverish the public debate.

The case at hand is a good enough example.

Why should the Michigan voters in the 93rd House District be deprived of the information that private associations owning and operating a vast percentage of the industry of the state and implying a large number of its citizens believe that the election of a particular candidate is important to their prosperity?

Contrary to the court’s suggestion today, the same point cannot effectively be made through corporate pacts to which individuals may voluntarily contribute.

It is important to the message that it represents the views of Michigan’s leading corporations as corporations occupying what Tocqueville called 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 corporation’s shareholders may belong.

Despite all the talk in today’s opinion 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.

This is not an argument that our democratic traditions allow either with respect to individuals associated in corporations, nor with respect to other categories of individuals whose speech maybe unduly extensive because they are rich or unduly persuasive because they are movie stars or unduly respected because they are clergymen.

The premise of our system is that there is no such thing as too much speech, that the people are not foolish but intelligent and will separate the wheat from the chaff.

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.

For these reasons, I dissent.