Robert G. Kaiser -- Case Before Supreme Court Could Transform Campaign Finance

By Robert G. Kaiser
Sunday, September 6, 2009

Occasionally, the Supreme Court reaches a decision that transforms American life. Fifty-five years ago Brown v. Board of Education announced the impending demise of racial segregation, and today we have a black president. In 1962, Baker v. Carr initiated a series of decisions that established the principle of "one man, one vote," eventually ending rural domination of Congress and state legislatures, a revolution in American governance.

This year or next the court could again remake the American system by permitting a flood of corporate money into our electoral campaigns, which are already drenched in dollars. Like Brown, such a decision would create vast new opportunities for a particular class of Americans -- this time, corporate elites.

This possibility comes as a surprise. Until this summer, the barriers preventing the use of corporate and union funds in political campaigns -- the oldest dating to 1907 -- were "firmly embedded in our law," in the words of a 2003 Supreme Court decision upholding the ban. Then on the last day of the court's term in June, for reasons not explained, the court invited the parties in a case called Citizens United v. Federal Elections Commission to revisit the constitutional issues involved. This they will do in an unusual second argument on the case, scheduled for Wednesday.

Could the court really allow corporations and their agents -- the Chamber of Commerce, say, or coalitions of companies created for the purpose -- to campaign openly for or against individual candidates for federal office? Yes, it could. Campaign finance reformers are afraid that the two newest conservative members of the court, Chief Justice John Roberts and Justice Samuel Alito, may be eager to overturn a long line of precedents. This would revolutionize our elections and could profoundly corrupt our government.

Though Citizens United itself looks like small beer, the stakes are enormous. The case involves a dispute between a conservative nonprofit organization, Citizens United -- legally, a corporation -- and the Federal Election Commission, which is supposed to enforce campaign finance laws.

Citizens United made a 90-minute film pillorying Hillary Clinton during last year's Democratic primaries, and the group sought to distribute it through on-demand cable television services and to advertise the film on television. Under the law, it is illegal to use union or corporate funds to pay for broadcast messages that advocate the election or defeat of a named candidate for federal office up to 30 days before an election. So the FEC moved to stop Citizens United from paying to show or promote the film. A U.S. District Court agreed. Citizens United appealed to the Supreme Court.

Lawyers involved in the case expected a narrow ruling, perhaps concluding that a nonprofit organization such as Citizens United ought not be covered by a ban on corporate participation in elections. Instead the court reached no decision and asked for the re-argument.

How would the political world be changed by legalized corporate campaigning? There would be a vast increase in the influence of corporations.

Of course that influence is already substantial. In the 2008 election cycle, when a staggering total of nearly $6 billion was spent on all federal campaigns, corporate political action committees, trade associations, executives and their lobbyists put more than a billion dollars into the kitty. Not surprisingly, corporate interests have always done well in Congress.

More than a quarter-century ago, then-Sen. Bob Dole, a Kansas Republican, told the Wall Street Journal: "When these political action committees give money, they expect something in return other than good government."

"We may reach a point," Dole predicted, "where if everybody is buying something with PAC money, we can't get anything done."

Dole was prophetic. Congress has failed to legislate on urgent issues for years -- think of health care, climate change, immigration, Social Security and Medicare. The organized interest groups that surround those issues rely on money to defend their positions and frustrate new initiatives. This is the wall our new president ran into this summer.

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