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SCOTUS Ruling on Corporate Political Spending Is a Business Decision

4 years ago
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A little more than a century ago -- just about at the same time when Congress outlawed all campaign contributions by corporations -- humorist Finley Peter Dunne, channeling the diction of an Irish bartender, shrewdly wrote, "Th' Supreme Coort follows th' election returns."
Normally, though, the Supreme Court has the self-restraint to wait more than two days. On Tuesday Massachusetts voters rebelled against special interests, Wall Street bailouts, and one-party rule by vaulting Republican Scott Brown into the Senate. Thursday morning the Supreme Court, by an ideologically predictable 5-to-4 margin, overturned as unconstitutional laws that ban corporations from running TV ads explicitly backing or opposing candidates during election campaigns. Just 38 hours after the polls closed in Massachusetts, the Supreme Court granted corporations -- the ultimate special interests -- sweeping powers to intervene in the 2010 elections. Instead of having to work through heavily regulated political action committees (PACs), corporations can now, if they choose, spend as freely on politics as they do on salaries, advertising or manufacturing.

The sweeping decision by the Court's five-member conservative majority was immediately hailed by Republicans (aside from John McCain, who coauthored the 2002 law that was partially overturned) as an uplifting triumph for the First Amendment. In reality (and I know this will upset those who still believe in the Tooth Fairy), the GOP statements are mostly motivated by self-interest on the assumption that corporations will mostly want to back anti-tax and anti-government-regulation Republicans. Democratic dismay (Barack Obama warned of "a new stampede of special-interest money in our politics") also has its dollars-and-cents component as Obama raised five times more than McCain in 2008 from small (under $200) donors.
Thursday's ruling in Citizens United v. Federal Election Commission may prove to be the most significant political event (sorry about that Sen. Brown) since the 2008 election. Its potential implications are so vast that it is misleading to merely view the Citizens United case through a narrow partisan prism. Michael Waldman, a former Bill Clinton speechwriter who is now the executive director of the Brennan Center, a non-partisan public policy institute which specializes in political reform, said, "Exxon Mobil's profits in 2008 were $45 billion. At 9:00 Thursday morning, Exxon's manager could not spend any of that money to back candidates. And at noon Thursday, after the Supreme Court ruled, they could. There is nothing to prevent them from spending Mike Bloomberg-level money in every congressional district in the country."
To use an example that Republicans might find chilling: Imagine in the weeks before the 2012 election that the successfully bailed-out General Motors floods the airwaves in up-for-grabs auto-making states like Michigan, Ohio and Indiana with 30-second TV spots that begin, "Thank you President Obama for saving jobs..." and end with the tag line, "Baseball, hot dogs, apple pie, Chevrolet and Obama." Okay, most corporations peddling consumer products are not likely to be that heavy-handed in their partisanship. But the automakers could express their gratitude to the White House almost as effectively by pumping, say, $40 million in corporate profits into a vague-sounding entity like the Midwestern Jobs Rescue Coalition, which would then run pro-Obama commercials. (The Supreme Court did, with only Clarence Thomas dissenting, require disclosure of corporate election spending above $10,000).
The financial meltdown has given the federal government greater sway over individual companies than at any time since the Depression -- and this kind of economic clout is likely to continue if the Republicans regain power. With its 57-page decision written by Justice Anthony Kennedy, the Supreme Court has raised the potential of the ultimate wink-and-nod political quid pro quo -- federal economic assistance in exchange for overt corporate political support. This is a new quasi-legal temptation awaiting any president of either party running for re-election -- Obama hopefully will not operate in this cynical fashion, but you can picture how Richard Nixon would react to a similar 21st century political environment.
Since the days of the liberal Earl Warren Supreme Court in the 1960s, Republicans and many Democratic moderates have railed against "judicial activism" and have idealized justices who apply the law in the narrowest way possible. In his opening statement at his 2005 Senate confirmation hearing, Chief Justice John Roberts talked winningly about judicial modesty: "Judges are like umpires. Umpires don't make the rules; they apply them...But it is a limited role. Nobody ever went to a ball game to see the umpire."
But Thursday Supreme Court decision, in which Roberts wrote a concurring opinion, had all the modesty of a streaker running around the outfield at Yankee Stadium.
As Kennedy made clear in his majority opinion, there was ample opportunity to decide this case on narrow technical grounds. The facts of the case were unusual: At the height of the 2008 Democratic primaries, a non-profit organization called Citizens United was banned from broadcasting on pay-for-view TV a heavy-handed anti-Hillary Clinton documentary. Kennedy could have legally distinguished between political advocacy groups like Citizens United and corporations, or decreed that the ban on electioneering does not apply to TV documentaries or ruled that the 2002 campaign reform bill unconstitutionally outlawed political advertising by non-profit groups like Citizens United within 30 days of a primary. But in his single-minded quest to overturn almost all limitations on political activities by corporations (aside from the original 1907 ban on direct campaign contributions), Kennedy argued, "The Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment."
As hard as it is for the uninitiated to grasp, the court's conservatives are animated by the belief that there is no legal difference between an angry Massachusetts Joe Six-Pack voter and a corporate entity like Goldman Sachs. Both are just ordinary guys who root for the Red Sox, drink Bud, worry about their kids, and get annoyed about how things are going in Washington. In his opinion, Kennedy ridiculed the notion that the vast economic power of corporations distorted democracy or that this fear was a valid legal argument: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the anti-distortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form."
The finality of the Supreme Court decision left campaign reformers sputtering as they fantasized about everything from a constitutional amendment (yeah, sure) to a renewed drive for public financing of election campaigns (limited protection against unlimited corporate funds). Some took comfort in the expectation that the legal logic of the Citizens United decision would also grant labor unions the same powers in the political marketplace as corporations. While they are disproportionately Democratic, unions can be as self-interested as corporations, judging from labor's scorched-earth opposition to a tax on Cadillac health insurance plans in the Senate health-care bill.
About the only thing that is certain in the wake of Thursday's crockery-rattling Supreme Court decision is that voters in both parties are destined to get an even heavier dose of what they crave least -- negative 30-second campaign spots with voice-of-doom narrators. In fact, the big winners from the Supreme Court's latest bout of conservative legal activism could well be political admakers and campaign consultants, who have just found new lucrative corporate outlets for their talents. But as even more power flows to corporate America in the Supreme Court's latest version of a vibrant democracy, ordinary voters may feel like the political equivalents of chopped liver.
Filed Under: Supreme Court, Campaigns

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