• Similarly, the majority's sweeping conclusion that a corporation and an individual are the same for purposes of assessing limits on political spending in an election context is also a value choice. Since 1907, when Congress limited corporate contributions to candidates, there has been plenty of law viewing the corporation, not as a "person" in the same sense as an individual, but as a creation of the state with "personhood" as a legal fiction. Who, by the way, is the corporation: the employees, the senior executives, the board of directors, the shareholders, the creditors? Although the Court in a prior case involving a state referendum, had given corporations' free speech rights, that decision explicitly noted that the opinion did not apply in the "quite different context" of a candidate election. The point is simply that the Court's conclusion on this pivotal issue in Citizens United was again a broad value choice, which could have been decided either way.

• Finally, the majority concluded that none of the main arguments to support the Congressional limitation on independent corporate expenditures--anti-corruption, anti-distortion or lack of shareholder approval--constituted the kind of "compelling state interest" that justifies infringement of First Amendment rights, especially in the core area of political speech. Many of the "factual" and "impact" propositions advanced by the Majority are, as Justice Stevens rightly points out, not moored to any facts in the record (because there was no record) and are speculative. There were many friend of court briefs in the case, citing studies this way and that. But these studies were not subject to cross-examination (and we should be skeptical of unchallenged findings of social science research). So, again, the Court substituted its value choices about the weight of the arguments in support of the expenditure limitation for that of Congress, showing little deference to Congressional findings. The Court used the fulcrum of the law's supposed "chilling effect" on speech to leverage its value choices on the lack of compelling interests. But has anyone but the court noted the chilling effects on corporate and union participation in politics from the expenditure and other limitations?

The absence of a full record on election laws--and the Court's inability to have a broad field of view like the Congress--means that the majority decision has left us with two other paradoxes.

First, the decision is likely to weaken candidates and parties. There are now two kinds of "independent" expenditures: the newly freed and unlimited "independent" expenditures in support of, or opposition to, candidates by corporations and unions (which cannot be coordinated with the campaigns). There are also the soft-money, so-called 527 organizations which can spend unlimited funds on independent "issue advocacy" (but not candidate advocacy). Only candidates and their campaigns are now subject to limits: they can receive up to $2,400 from individuals and $5,000 from PACs per election (primaries and general elections are different). Unless they find the magic internet fundraising formula used by the Obama presidential campaign, they can be swamped in an election by both corporate/union and 527 expenditures.