Hayward in NY Post: High Court Ruling for Free Speech

In an op-ed appearing in the New York Post, Professor Allison Hayward comments on the January ruling by the U.S. Supreme Court overturning a federal ban on corporate expenditures in elections.

In the Citizens United case, Justice Anthony Kennedy, writing for a five-justice majority, maintained that "Speech restrictions based on the identity of the speaker are all too often simply a means to control content." Hayward cites a history of campaign finance laws she believes were designed to do just that.

An impact of the new ruling, says Hayward, is that "Labor unions, which are inherently 'political' in ways corporations are not, will be well positioned to take advantage of this new freedom. It will be important for oversight of labor management and finances to keep up with these changes, to protect non-union workers' fees and the interests of all workers in the sound management of collective-bargaining representation."

"It is unlikely that national corporations with broad consumer bases will jeopardize consumer goodwill by advertising for a candidate in a controversial race," Hayward says, believing it more likely they will continue the soft-focus messages many use today. To believe corporate money was not being used indirectly before would be naive, she says, maintaining that corporate support will be unmasked under the new ruling.

Hayward filed an amicus brief in the Citizens United case, and her research was cited positively by the Court in its opinion.

High court rules for free speech, New York Post, January 22, 2010. By Allison R. Hayward.


"In fact, the sorry history of campaign-finance laws reveals just such intentions. The first expenditure ban became law as part of the Taft-Hartley Act in 1947. Republicans, then dominating Congress, aimed the ban squarely at unions. Labor challenged the law, but, unfortunately the court of that day was unwilling to squarely apply the Constitution.

"Because the law remained on the books, supporters of the ban will now complain that Citizens United overturns stable precedent. In fact, the only possibly relevant high-court decision (in Austin v. Michigan Chamber of Commerce) was itself a controversial departure from settled First Amendment principles.

"And, as Chief Justice John Roberts' concurrence points out, if a precedent conflicts with the Constitution, it is the court's precedent, not the Constitution, that must yield."