Let the special-interest games begin
Thursday's Supreme Court decision on campaign finance struck down a long-standing prohibition on corporations using their general funds to run campaign ads in elections and unleashed a deluge of corporate money into the political system. The move, which has been praised as a victory for free speech on the right and derided as an attack on the very integrity of our democracy on the left, marks the biggest change in campaign finance law in over 30 years.
On Capitol Hill, the reaction to the Supreme Court's decision fell fairly neatly along party lines. Senate Minority Leader Mitch McConnell, R-Ky., lauded it as a much-needed protection of First Amendment rights. President Obama, on the other hand, issued a statement calling it "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans." Russell Feingold, D-Wis., expressed a similar sentiment, releasing a statement saying, "The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending our federal elections."
The Democrats are not alone in their concerns about the ruling. Trevor Potter, a Republican lawyer who served as general counsel to the John McCain 2008 campaign, told Salon, "I think it was a mistake of historic proportions by the Court -- by five justices. I think it's embarrassing to overturn a decent decision by the Court just because one justice [Justice Sandra Day O'Connor] has retired. I think the Court ignored its practices of avoiding major constitutional decisions and overturning acts of Congress if there is some other way of resolving the case. I think the Court has made a mistake by diving into what is a very political issue and by overturning its very recent precedent when the facts haven’t change ... [The Court also] makes a mistake by failing to understand the effects of this decision."
This week's ruling overturns an earlier decision in 2003, which upheld the constitutionality of most of the McCain-Feingold campaign-finance bill. Justice O'Connor, who was still on the Court at the time, voted with 5-4 majority. The new ruling, according to Potter, "is likely to lead to a significant impact on the legislative process that the Court doesn't understand because not a single justice on the Court has served on a state legislature or in a legislative body."
"Corporations are going to have more legislative control because they will be able to lobby for their interests and either implicitly or explicitly will be able to threaten the spending of millions of dollars against members of Congress who don't agree with them on votes."
Nick Nyhart, the president and CEO of Public Campaign, a nonprofit organization dedicated to reducing the role of special interest money in politics, agrees that increased corporate influence on legislators is a major concern. On the phone with the Salon, he said, "The real bad news is for people who want healthcare legislation, people who want legislation that will protect our environment, people who want legislation who want to make sure that banks are their friends, not their enemies. "
Democrats have vowed to work to pass legislation that would restore as many of the restrictions as possible, but the ruling may still have serious and visible consequences for the 2010 midterm elections, with independent issue and trade organizations likely to emerge as major players. Lawrence Noble, a campaign finance lawyer who served as general counsel for the Federal Election Commission (FEC) for over a decade, told Salon that most corporations would be unwilling to make direct expenditures in support of candidates for fear of being seen as too political. Instead, they're likely to donate to trade and issues organizations to do the campaigning for them.
"You will definitely see more money," Noble said. "I don't think you're going to see your Fortune 500 companies expressly advocating candidates, but they will be giving to organizations that will."
A memo released by the prominent Republican election lawyer Ben Ginsberg and several colleagues at Patton Boggs echoed this sentiment. It described 501c4's and 501c6's, as issue and trade groups are known under the tax code, as "likely to emerge as the biggest players in the 2010 and 2012 election cycle ... Meager disclosure requirements of their donors will make them a favorite repository of funds for independent expenditures."
The Ginsberg memo also noted that the ruling will "drastically alter the landscape for candidates and political parties." For candidates, "controlling the issues they want to run on will become a real challenge, as will having sufficient funds to portray their positions and images."
The impact on political parties could be even more extreme: "Unless the laws change, the political party as we know it is threatened with extinction. The parties do several things for their candidates and supporters -- raise money and conduct independent expenditures, conduct voter contact programs and describe the party’s position on issues, often through issue advocacy. With the limits on the amounts and sources of funds they can accept, the parties will be bit players compared to outside groups that can now conduct those core functions with unlimited funds from any source."
To put the Supreme Court's ruling in proper perspective, corporate money is now equated with speech (this is not the first time the court has ruled that spending is a form of speech but it is a first for equating speech with the spending habits of a legal citizen of the non-flesh variety). This is not what we traditionally consider to be speech, mind you, because the average conservative sees nothing wrong with using the FCC to fine a broadcast company hundreds of thousands of dollars because a Super Bowl half-time performer experienced a wardrobe malfunction. Or the political speech of burning a flag or watching pornography. Interestingly, in those cases most conservatives will manufacture a perceived hurt feeling and need for vigorous government regulation of private bedroom behavior and speech. It is only the money of corporations that qualifies in turning these otherwise censorship enthusiasts into fundamentalists for the First Amendment (to which the only other recent instance I recall such a citation of our most important amendment in the Bill of Rights was when they were telling us that hate laws would infringe on their right to freely invoke violence against gays).
Money as speech is a convoluted reading of free speech, as none of the framers, including Madison (the author of the Bill of Rights), ever equated money with speech (or hinted at it in either the Federalist Papers or any of the convention speeches). Indeed, it was not until the 20th century, when corporate donations were banned following the Tillman Act that conservatives and strict constructionists began applying the liberal incorporation doctrine to reinterpret the Constitution to mean that speech was the same as money. Thus it was the application of the Slaughter House cases, in which the Supreme Court used the 14th Amendment to protect the rights of corporations, that business attorneys discovered the tactic of utilizing the privileges and immunities clause (meant to protect freed slaves [which many of these companies profited from for over two centuries]) to cover for their private interests and extend liability protection from the state. It was from this that we have the infamous Santa Clara County v. Southern Pacific Railroad, in which the Supreme Court declared corporations to be legally protected persons. That 1886 decision became the foundation of corporate rights, which exists to this day. Without those decisions, Citizens United v. FEC would have never been possible.
The aforementioned about corporate citizenship notwithstanding, it was not until Buckley v. Valeo (1976) that the Supreme Court for the first time declared campaign spending a form of protected speech (in this case, personal spending, not the corporate donations enabled by Citizens United [a right-wing front group financed by corporations]). Again, none of these decisions are based on expressed statements in our Constitution or that most favored of all conservative mantras the "original intent" of the framers (the goal of what Citizens United claims to support, even though they had to depend on the incorporation doctrine to make possible direct subsidization of political campaigns).
As for the beneficiaries of this ruling, make no mistake about it: It will benefit the Republican Party. Glenn Greenwald, usually dependable on progressive issues, argues that it will benefit both parties equally, so long as they are incumbents, but if one looks at corporate donations through soft money (before McCain-Feingold), it clearly benefited the GOP, which is why so many Republicans were opposed to campaign finance reform and held it against McCain for authoring the legislation. As moderate as the Democratic Party usually is, much to my own frustration, it is perceived as the liberal party of this country, and when 77% of investors view President Obama as unfriendly to business, it should not require a great amount of deduction to figure out who will be the repository of the bulk of the coming corporate money takeover of American politics.
And not surprisingly, Republicans and conservatives are excited by this prospect, since they are the party of those interests (yes, even more so than the Democrats) and will now be able to neutralize the loss of funds to the Democrats following the passage of McCain-Feingold (itself a highly flawed piece of legislation). By opening this process to all elections and every private industry without limitations, politicians running for national office are going to become unabashed representatives for those industries. And we will be paying for this, just as we have to pay for ethanol subsidies after Archer Daniels Midland corporation lobbied both parties on the issue for over two decades (accompanied by millions of dollars of campaign contributions [and that was with the ban on direct corporate donations]). If one believes the Gallup polls, 55% of all Americans agree with the Supreme Court's decision, which means there will be little to no public pressure to reimpose those restrictions.
It is a sad irony this same court ruled 48 years ago in Baker v. Carr that inequitable redistricting of Congressional districts, which weighted more votes to rural counties over urban ones (sometimes by a ratio of 10 to 1 in favor of rural countries), thereby violating the Constitution's equal protection clause in the 14th Amendment (and the principle of one person, one vote), has now basically commodified that vote, knowing the consequences will be an inequitable influence of that vote in favor of donors, far surpassing the old county unit and urban/rural redistricting electoral systems that the white South used to suppress black voters. Now, we are all targets, except those corporate entities with the money to buy our system and elections, of course.