Economy & Trade, Headlines, North America

U.S.: Court Overturns Limits on Corporate Election Money

Jim Lobe

WASHINGTON, Jan 21 2010 (IPS) - In a decision with profound implications for the U.S. political system, a bare majority of the Supreme Court Thursday ruled that the government cannot limit spending by corporations on advertisements in support of individual political candidates in federal elections.

The 5-4 decision in ‘Citizens United v. Federal Election Commission’, which drew immediate criticism from the White House, found that such limits violated the Constitution’s First Amendment, which guarantees freedom of speech.

“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control through,” wrote Justice Anthony Kennedy in an opinion that was joined by the Court’s four most right-wing justices, including Chief Justice John Roberts, “This is unlawful.”

“The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” he concluded in an argument that drew a harsh dissent from his four more-centrist colleagues.

Critics of the decision, led by President Barack Obama himself, called the decision a serious threat to the health of U.S. democracy.

“With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics,” Obama, who taught Constitutional law at the University of Chicago.

“It is 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,” he said, adding that he will work with Congress to “develop a forceful response.”

Fred Wertheimer, the nation’s most prominent citizen-advocate of campaign finance reform and currently head of Democracy 21, called the decision a “disaster for the American people.”

“It will unleash unprecedented amounts of corporate ‘influence-seeking’ money on our elections and create unprecedented opportunities for corporate ‘influence-buying’ corruption,” he wrote in a New York Times online commentary, adding that the decision will propel corporations “to new heights of importance on our political system.”

Other analysts called the decision audacious, if not hypocritical, particularly in light of the right-wing majority’s ritual criticism of so-called “activist” judges who allegedly interpret the Constitution in ways that its authors did not necessarily intend or contemplate but that are consistent with their “liberal” political views.

“This matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court,” wrote Michael Waldman, who heads the Brennan Center for Justice at New York University’s School of Law, in a reference to the Court’s widely criticised 2000 decision that halted a recount of the vote in Florida that year, effectively sending George W. Bush to the White House.

“In that case, the court reached into the political process to hand the election to one candidate. Today it reached into the political process to hand unprecedented power to corporations,” wrote Waldman.

Efforts to limit corporate influence in national elections date back to the Progressive Era and the presidency of Theodore Roosevelt more than a century ago when Congress banned corporations from making direct contributions to federal candidates.

Due to loopholes and a lack of enforcement, however, that and subsequent legislation proved largely ineffective. It was not until the 1974 Watergate scandal that Congress passed new legislation designed to regulate campaign contributions in a more comprehensive manner enforced by the newly created Federal Election Commission (FEC).

In response, wealthy individuals, corporations, labour unions, and other groups resorted to spending so-called “soft money” – direct contributions to political parties and advocacy groups that often used this new flow of money to run “attack ads” against opposing candidates and other forms of partisan promotion — in order to circumvent the new limits.

To deal with this new problem, Congress approved the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold law after its two main Senate sponsors. In addition to limiting the flow of “soft money”, the Act banned the airing of corporate- or union-financed broadcast ads and similar “electioneering communication” for or against specific candidates in the run-up to federal primary and general elections.

In the case decided Thursday, Citizens United, a right-wing, corporate-funded advocacy group, had produced a 90-minute attack video entitled “Hillary: The Movie” aimed against the presidential aspirations of then-Sen. Hillary Clinton during the Democratic primaries in 2008.

The FEC found that the video’s broadcast violated the McCain-Feingold ban, and Citizens United took the case to court. The lower court sustained the FEC’s finding, and the case was appealed upwards, eventually reaching the Supreme Court.

The Court, which first heard arguments last March, asked the parties to return six months later to address whether the Court should overrule two its previous decisions – one in 1990 and the second in 2003 – that upheld restrictions on corporate contributions in support or opposition to specific candidates.

Recognising the potentially far-reaching impact of the decision, a host of groups and relevant individuals filed “Friend of the Court” briefs.

Corporate groups, such as the U.S. Chamber of Commerce; labour unions, and powerful lobby groups, including the National Rifle Association, called for the Court to rule the McCain-Feingold ban unconstitutional, while good-governance organisations, such as Public Citizen and People for the American Way, and states with similar campaign-finance laws, urged that it be upheld.

Much like the Gore v. Bush decision, those members of the Court who were nominated by Republican presidents since the party turned sharply to the right under Ronald Reagan voted to strike down the ban as unconstitutional, while those appointed by Democrats — plus John Paul Stevens who was nominated by Gerald Ford in 1975 – voted to uphold it.

It was the 89-year-old Stevens, who is widely considered the most-liberal member of the Court, who wrote the 90-page dissent.

“The court’s ruling threatens to undermine the integrity of elected institutions around the nation,” he warned, noting that it ignored “rules of judicial restraint” and constituted “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

With the notable exception of Sen. John McCain, Republicans in Congress praised the decision, with Senate Minority Leader calling it an “important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day.”

Democrats, on the other hand, were almost universally critical. “The bottom line is, the Supreme Court has just pre-determined the winners of next November’s election,” said New York Sen. Charles Schumer. “It won’t be the Republicans or the Democrats, and it won’t be the American people; it will be Corporate America.”