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Citizens United v. FEC: First Amendment Rights Restored; Time for Transparency

By Phil

Today, the Supreme Court, in a 5-4 decision, summarily did away with decades-old campaign finance reform law — as well as portions of the McCain-Feingold Bipartisan Campaign Reform Act — by removing monetary restrictions that had limited the funding that labor unions and corporations could use for political campaigns.

From the AP:

By a 5-4 vote, the court on Thursday overturned a 20-year-old ruling that said corporations can be prohibited from using money from their general treasuries to pay for campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

Advocates of strong campaign finance regulations have predicted that a court ruling against the limits would lead to a flood of corporate and union money in federal campaigns as early as this year’s midterm congressional elections.

The decision, written by Justice Anthony Kennedy, removes limits on independent expenditures that are not coordinated with candidates’ campaigns.

It leaves in place a prohibition on direct contributions to candidates from corporations and unions.

The high Court’s opinion can be found here.

As PoliticalWire puts it:

This decision will almost certainly cause a mini-revolution in American politics.

The Rothenberg Political Report provides thoughtful analysis:

Democrats, liberals and ?good government groups? called the decision a ?disaster,? predicting that corporations would drown future elections and cash and buy elections. Conservatives and Republicans praised the decision as expanding free speech. …

Most, though not all, observers seem to believe that the decision will bring more money into campaigns, certainly from business but also from ideological groups and non-profit corporations.

Most, but not all, also believe that political parties and candidates are the big losers, since outside groups will now be able to spend unlimited amounts while candidates and the party campaign committees will have relatively fewer resources.

That means that outside groups will, at least in theory, be able to dictate what the candidates are talking about. And unlike the past, when advocacy ads were prohibited from airing right before a primary or the general election, corporations will be able to air express advocacy ads at anytime during the election cycle. …

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I especially like how AmericanDaughter puts it:

…[C]orporations must spend the money on their own initiatives and ads. They still cannot make unrestricted donations directly to a candidate. Essentially, what this does is to affirm the right of free speech for the stockholders.

At first glance, some thoughtful citizens may not like this result. Most of us feel that money corrupts politics, and do not like the idea that an election goes to the highest bidder (e.g., Bloomberg). But let?s consider an example that most conservatives and gun rights advocates will understand: Firearms manufacturers can create television ads supporting candidates that defend our Second Amendment rights. That puts it in a different light, doesn?t it?

As another example, an American sugar refinery could support a candidate who favored high taxes on imported foreign sugar, keeping jobs in the United States. Or, more specifically, Boeing can now spend big bucks to support the candidacy of U.S. Rep. Todd Tiahart (KS-4th) in his run for the senate as he fights to keep the Air Force from awarding its refueling tanker contract to European Aerospace and Defence Company ? an all-out effort to save Boeing jobs in Wichita. [emphases original]

OpenCongress has posted the congressional reaction in the form of the Fair Elections Now Act, HR1826/S752. However, in my view, reading over the list of co-sponsors to the House bill reveals that this is overwhelmingly a Democrat bill, which, for me, inherently makes it suspect, given today’s political climate.

Yet, regardless of what legislation comes about, the SunlightFoundation seems to have the best answer for the “other hand”-side of the argument — absolute transparency:

Today?s decision underscores the necessity of creating comprehensive real-time disclosure for all election spending ? across the board ? from when and how often candidates, individuals and PACs report their contributions and expenditures to those involved in independent expenditures, issue ads or direct election advocacy.

The rest of the posting is worth a read, and the current comment by Seth Johnson is particularly worth noting:

Any given state could devise conditions for being granted limited liability. This could clearly be set up as a distinction whereby rights of natural persons are distinct from whatever rights state-created corporate entities with limited liability privileges possess ? at the state level. You can simply apply the principle of fundamental rights of natural persons on their own or within associations, while understanding associations with limited liability privileges as distinct because of those privileges.

The federal level is a different beast. The real problem with this ruling is that it looks like a further extension of corporate rights, when actually it?s an overapplication of federal commerce clause jurisdiction, so that by upholding the rights of persons and their associations at that level, the ruling glosses over the unique powers that corporations have as compared to natural persons. Rather than clarifying that the artificial beings given limited liability by states may be distinguished from natural persons who have ordinary liability under the law, this ruling is a further gloss that leads to more misconceptions about the corporate form.

One of a number of SCOTUSBlog postings shed light on Congress’ reaction to the decision (the entire posting is well worth the read):

President Obama ordered his aides on Thursday ?to get to work immediately with Congress? to develop ?a forceful response? to the Supreme Court?s ruling in the Citizens United v. Federal Election Commission case.  In a statement, the President denounced the decision, saying it ?has given a green light to a new stampede of special interest money in our politics.?  It was obvious, therefore, that he was interested in working with Congress to overturn the decision, or at least to narrow it significantly.

Unless he has in mind an amendment to the Constitution, however, it is most unclear at this point whether the lawmakers could do anything ? or much of anything ? to cut down on ?special interest money? in American politics.  This was a constitutional decision, laying down (essentially for the first time), a sweeping free-speech right in politics for ?special interest? bodies of all types with the concept of ?speech? clearly embracing spending money to influence election outcomes.  If individuals have considerable freedom to express themselves politically, corporations, labor unions, and other ?special interest? entities now do, too.

While the First Amendment?s guarantees of freedom are far from absolute, any time a legislative or other government body attempts to curtail those freedoms, the effort starts with a decidedly negative outlook.  Such restrictions come with the heaviest burden of proof of necessity that any governmental act must put forth in order to win judicial approval.  And, on Thursday, the Court simply made that burden a good deal heavier in the realm of curbs on political speech, in the form of spending money on campaigns, or otherwise. …

Moreover, given the election result Tuesday in the Masssachusetts race for a Senate seat, there is reason to doubt that the White House will be able to carry off a significant effort to get a ?forceful response? to Citizens United, especially when the real-world effect of that decision in federal campaigns is likely to be greater spending in favor of GOP candidates, since corporations have deeper pockets than, say, labor unions.

Other links worth a read:

• Citizens United v. FEC Round-up (SCOTUSBlog)
• Analysis: The personhood of corporations (SCOTUSBlog)
• Citizens United Decided: Major Changes in Campaign Finance Laws (Updated) (LegalTheoryBlog)
• Revelations in Citizens United Decision (Constitution blog)
• Schumer calls for hearings on SCOTUS decision (TheHill)

-Phil

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Full post as published by The Right Side of Life on January 21, 2010 (boomark / email).