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January 25, 2010

how to respond to the Supreme Court's campaign finance decision

The Supreme Court's decision in Citizens United is reckless, inconsistent with its authors' own principles, and likely to damage our already deeply flawed politics. Many others have noted that the Chinese Government may now legally deploy billions of dollars to influence American legislation by spending money on our campaigns through innocuous-sounding front organizations. Companies don't even have to spend money if they can threaten to do so. And incumbent members of Congress can now blackmail corporations to spend on their behalf by threatening to legislate against their interests.

Still, some effective avenues of response are open to us.

1. The opinion says, "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." All right--we can't regulate political "speech" (which, the Court says, includes money). But we can certainly regulate the terms under which corporations are chartered and operate in the United States. The federal tax code, the Securities and Exchange Act, and many other statutes determine the conditions and terms of incorporation, placing many restrictions on firms that do not also apply to individuals. So let's try a law that says: No company that files taxes with the Internal Revenue Service may spend any funds to influence legislation or elections in the United States. The penalty for violating this provision is not "jail or [a] fine" for any "citizen"; instead, the firm is placed on probation, denied the right to seek federal contracts, and finally subject to losing its articles of incorporation.

Or we could say that when you apply to incorporate, you must acknowledge that the legal entity that will be created will not have the rights of a person under the United States Constitution but will enjoy only those rights expressly granted to it by statute.

Or we could just pass a statute saying that firms incorporated under the laws of the United States are not persons. Let the Supreme Court find a constitutional text about "corporations" that would render that statute unconstitutional.

Steps along the way might have broader public support than these. For example, we could introduce legislation saying that any corporation that receives any investment from a foreign government, foreign official, or sovereign wealth fund may not spend money to influence US elections. That could knock out most of the big players. I would dare members of Congress to vote against such a bill.

The House Democrats are also considering a law to require that shareholders approve political ads that companies run.

2. There might be a statutory fix for the Supreme Court decision. Companies are henceforth permitted to buy broadcast ads for express advocacy--I think that's the major change that the decision causes. The price of broadcast time is going to rise dramatically in the weeks before elections, as companies and their front organizations purchase time. Under the Fair Elections Now bill, however, candidates who comply with the provisions would get public subsidies and "a 20% reduction from the lowest broadcast rates." So they would actually be able to buy broadcast time for dramatically less than their corporate opponents. The Fair Elections Now Bill has Republican co-sponsors in both houses. You can support it by joining my first employer, Common Cause, and/or Change Congress.

These are my lead points. I would join many others in saying that the opinion is an illustration of judicial activism. The Constitution never mentions corporations or campaigns, but the conservative majority detects an implicit right of corporations to spend unlimited funds to influence elections. Presumably the justices have the power to divine such a right in the penumbra and emanations of the first and fourteenth amendments, notwithstanding nearly a century of votes by elected leaders, state referenda, and previous court decisions to the contrary. It is certainly possible that the decision will not do much damage, because corporations were already able to spend money to influence politics. But lawmakers have no right to gamble by enacting new policies that might have modest effects. Make no mistake: the majority of the Supreme Court acted like law-makers, not like the neutral umpires that Roberts depicted in his confirmation hearings. These lawmakers cannot be removed from office and their decisions cannot be appealed in the courts.

Finally, ever since I helped to lobby for campaign finance reform for two years in the 1990s, I have believed that limitations on spending are not really the solution. Money always leaks around the limits, and if you set them too low, you just penalize challengers who can't raise money as easily as incumbents. I favor clean, public subsidies for candidates rather than limits, and that approach is still permissible under Citizens United. But the decision does change the context. We may now see many billions of dollars spent in campaigns, and even if corporations do not actually buy ads, they will have pervasive power from their mere capacity to spend. Public subsidies are going to look paltry compared to these billions. I still think subsidies are the only solution, but the problem just became worse than it has been since Teddy Roosevelt's administration.

January 25, 2010 8:56 AM | category: none



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