Supreme Court to Rule on Corporate Financing of Political Campaigns

sleeping · January 14, 2010, 3:33am

Successive congresses have over the years strengthened that ban – with the Federal Corrupt Practices Act of 1925, the Federal Election Campaign Act (FECA) of 1971, broad amendments to FECA in 1972 and 1974 and the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002.

State governments have gone even further in barring efforts by corporations to influence elections.

The U.S. Supreme Court has accepted and rejected aspects of campaign finance laws over the years. But it has consistently respected the right of federal and state governments to constrain corporate electioneering
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Activists fear that the court’s five-justice conservative majority, “change electoral politics as we know it in America today by perverting the Constitution to bar the people and their elected representatives from limiting corporate political spending.” And they have been organizing to challenge the ruling in Congress and with proposals to amend the U.S. Constitution in a manner that would protect the democratic discourse from being overwhelmed by corporate spending.

http://www.thenation.com/blogs/thebeat/515747/feingold_fears_lawless_court_ruling_on_corporate_campaigning

Meanwhile, lower courts are also issuing rulings that diminish regulation of campaign financing:

Even before a landmark Supreme Court ruling on campaign finance law expected within days, a series of other court decisions is reshaping the political battlefield by freeing corporations, unions and other interest groups from many of the restrictions on their advertising about issues and candidates.

Legal experts and political operatives say the cases roll back campaign spending rules to the years before Watergate.
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The campaign finance system imposed after the Watergate scandal began to spring leaks in the 1990s with the large-scale exploitation of unlimited “soft money” contributions to political parties from wealthy individuals, corporations, unions and others. Congress fortified those rules by eliminating soft money with the 2002 campaign finance law known as McCain-Feingold, and since then activists and operatives have played cat-and-mouse with regulators in the search for other loopholes.
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No such restraints apply this year, in part because the changing composition of the Federal Election Commission has created a deadlock blocking vigorous enforcement. “The cop is gone from the beat,” said Trevor Potter, a lawyer for the nonpartisan Campaign Legal Center who has also worked for Mr. McCain.

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So if the court strikes down the restrictions on outside spending, some legal experts say, the remaining restrictions on direct contributions to campaigns would mean much less because it would be easy to support a campaign through an outside group.

http://www.nytimes.com/2010/01/09/us/politics/09donate.html?pagewanted=print

(1) Is this a real possibility? (Obviously, a legal question.)
(2) Would this violate the idea of precedent in SCOTUS decision-making?
(3) Would this be damaging to democracy?

SenorBeef · January 21, 2010, 3:17pm

Ah, finally the dark days of the powerful being minorly inconvenienced when stacking the deck in their favor are coming to an end.

villa · January 21, 2010, 3:49pm

Deleted duplicate post…

villa · January 21, 2010, 3:50pm

Well, they rolled it back. Struck part of McCain-Feingold. I don’t really see how they could do much else. It’s pretty much core political speech at stake here.

jayjay · January 21, 2010, 3:53pm

One dollar = one vote

It was a nice peculiar experiment while it lasted.

BrainGlutton · January 21, 2010, 4:01pm

Of course, but it would be a very good thing for plutocracy.

John_Mace · January 21, 2010, 4:02pm

Can you explain why you think that? The decision was 5-4, so it doesn’t seem so cut and dry to me just on that basis.

BrainGlutton · January 21, 2010, 4:05pm

The best argument against that I’ve yet encountered is in The Next American Nation, by Michael Lind (The Free Press, 1995), pp. 256-259 (from before the McCain-Feingold Bill, but I don’t think the picture has changed all that much since it passed):

Campaign financing is by far the most important mechanism for overclass influence in government. The real two-party system in the United States consists of the party of voters and the tiny but influential party of donors. The donor party in the United States is made up of an extraordinarily small number of citizens. In 1988, according to one study, only 10.2 percent of the American public made a contribution to a candidate, party, or partisan group. . . . The group of large political donors is a still more exclusive club. According to a study by Citizen Action, in the 1989-90 election cycle only 179,677 individual donors gave contributions greater than $200 to a federal candidate, political action committee (PAC), or party: “Thirty-four percent of the money spent by federal candidates was directly contributed by no more than one-tenth of one percent of the voting age population.” One may reasonably doubt that this one tenth of one percent is representative of the electorate or the population at large.

<snip>

Special interests buy favors from congressmen and presidents through political action committees (PACs), devices by which groups like corporations, professional associations, trade unions, investment banking groups – can pool their money and give $10,000 per election to each House and Senate candidate. Today there are more than 4,000 Political Action Committees (PACs) of various kinds registered with the Federal Election Commission; in 1974, when they were sanctioned by law, there were only 500. PAC money is driving campaign costs to new heights. In 1992, the average Senate incumbent spent more than $3.6 million for re-election; that is the equivalent of raising $12,000 a week in a single six-year term. Members of Congress, by comparison, spend only an average of $557,403 to be re-elected – a “mere” $5,000 a week for a two-year term. The average cost of a House campaign has risen to this level from $140,000 in 1980 – and $52,000 in 1974.

The chief beneficiaries of rising campaign costs and PAC contributions have been incumbents. In 1972, 52 cents of the average PAC dollar went to incumbents, compared to 25 cents to challengers (the rest went to candidates for open seats); in the 1988 House elections, incumbents received 84.4 cents of each PAC dollar and challengers only 8.6 cents. It makes more sense for lobbies to buy access to established members of Congress and senators – particularly those with important leadership positions – than to fund challengers, who, if elected, would have no seniority and little influence. . . . Former Senator Barry Goldwater has lamented, “The Founding Fathers would frown in their graves if they saw us rationing candidacies sheerly on the basis of money: who has – or can raise – the millions necessary to run for office.”

Democrats, when they were members of the majority party, received more PAC money than Republicans, though both parties are saturated with it. Contrary to conservative claims that liberal lobby groups dominate Congress, PAC funds come overwhelmingly from business: in 1990, 65 percent of PAC contributions came from business PACs, compared to 24 percent from labor and only 11 percent from ideological groups (including conservative as well as liberal pressure groups). “At one point,” John Judis has pointed out, “the American Petroleum Institute employed more lobbyists in Washington than the entire labor movement.”

One of the effects of the postpartisan PAC system is to weaken the link between members of Congress and senators and the districts and states they are supposed to represent. Out-of-state money from special interests often flowes into House and Senate elections. This means that many senators are, in effect, at-large representatives of free-spending national business constituencies.

Some argue that special-interest expenditures have no significant influence on public policy. If all of this money is not buying special favors from congressmen and senators, a great many groups and individuals who are otherwise careful with their resources are acting in a highly irrational manner, year after year.

They don’t come much more libertarian than Goldwater, and even he was appalled at this state of affairs.

From the same book, pp. 311-313:

Today’s U.S. government is democratic in form but plutocratic in substance. . . . In a misguided 1976 decision, Buckley v. Valeo, the Supreme Court held that Congress could not limit spending by rich Americans promoting their own candidacies. This decision was to the equalization of voting power what Dred Scott was to abolitionism. In The Yale Law Review, Jamin Raskin and John Boniface have argued that political candidates in the United States must win a “wealth primary.” Candidates without enormous amounts of money, either from their own fortunes or from rich individuals and special interest groups, cannot hope to win the party primaries – much less general elections. Indeed, the Buckley decision is one reason why more than half the members of the Senate today are millionaires. . . .

It is time to build a wall of separation between check and state. Curing the disease of plutocratic politics requires a correct diagnosis of its cause: the costs of political advertising. The basic problem is that special interests buy access and favors by donating the money needed for expensive political advertising in the media. Elaborate schemes governing the flow of money do nothing to address the central problem: paid political advertising. Instead of devising unworkable limits on campaign financing that leave the basic system intact, we should cut the Gordian knot of campaign corruption by simply outlawing paid political advertising on behalf of any candidate for public office. The replacement of political advertising by free informational public service notices in the electronic and print media would level the playing field of politics and kill off an entire parasitic industry of media consultants and spin doctors.

An outright ban on paid political advertising and the imposition of free time requirements on the media are radical measures, but nothing less is necessary if we are to prevent our government from continuing to be sold to the highest bidders. The argument against strict public regulation of money in politics is based on a false analogy between free spending and free speech protected under the First Amendment. The analogy is false, because limits on campaign finance do not address the content of speech – only its volume, as it were. It is not an infringement on free speech to say that, in a large public auditorium, Douglas will not be allowed to use a microphone unless Lincoln can as well.*

*A much more compelling analogy would be between the electoral process and the judicial system, with the electorate playing the role of the jury. In our system of trial by jury, there are elaborate rules governing the presentation of evidence to the jury by plaintiff and defendant (the “candidates”). If our judicial system were organized the way our judicial system is, then rich candidates would be allowed to buy time before the jury. Texas Senator Phil Gramm, in one Senate election, outspent his opponent by 300 to 1; the equivalent, in the judicial system, would be allowing a rich defendant to buy, say, six months to present his side of the case, while the poor plaintiff might be able to purchase only twenty minutes for his side.

sleeping · January 21, 2010, 4:06pm

I wonder what this means for the midterm elections. Would Goldman Sachs be able to spend a couple billion dollars to run non-stop propaganda from August to November?

villa · January 21, 2010, 4:11pm

To be very brief (deadline rapidly approaching) the right to join together to influence an election is a critical part of free speech, and has been historically. McCain-Feingold impacted that right. I’m downloading the opinion now and will say more later.

elucidator · January 21, 2010, 4:16pm

“…recent polls suggest that the incumbent, Senator Throckmorton (R-Citigroup) has a three point lead over his challenger, Jack Cough (D-Lockheed)…”

kingbighair · January 21, 2010, 4:20pm

I am not particularly sold on money being tantamount to speech. I believe that is a court construction and I would be happy to see it reversed.

John_Mace · January 21, 2010, 4:20pm

Let’s not forget about the unions. Hillary is probably very pissed.

RTFirefly · January 21, 2010, 4:37pm

That pretty much sums it up.

The unions have nothing remotely like the assets that corporations can throw at elections. If we forget about the unions, little information is lost.

John_Mace · January 21, 2010, 4:41pm

Corporations aren’t always going to back Republicans. They tend to cover their bases.

But I was referring specifically to the last Democratic presidential primary. Hillary might well have had a financial edge of Obama if the unions could have gone whole hog. I don’t see the corporations coming to Obama’s aid.

elucidator · January 21, 2010, 4:46pm

Well, everybody knows that money talks. In America, it votes.

Really, its just a very originalist interpretation of the Constitution, quite a few of our Founders sagely held that the power of government was best kept in the hands of the monied and propertied, to ensure wise stewardship.

At long last, the iron grip of ACORN may be challenged, and the working class will be freed from the onerous task of making decisions.

At the grave of Tom Paine today, visitors and passersby were disturbed by an eerie cry of ghostly horror. WeSaySo Corp has generously donated earplugs to be freely distributed. Yes, they’re mandatory, badthink is pollution, and qualifies as a public health issue. You have the right to remain silent.

jayjay · January 21, 2010, 4:46pm

I don’t see why not. He’s not exactly a bomb-throwing anti-corporatist. He’s denied DLC membership before, but I don’t think he’s that far off from their mindset. He certainly hasn’t been setting the insurance industry on their collective ear over healthcare.

John_Mace · January 21, 2010, 4:48pm

I’m talking about the Primary, where their choice is Hillary or Obama. Why would they favor Obama over Hillary?

jayjay · January 21, 2010, 4:50pm

Okay, you have a point about the primary. Both of them are basically New Democrats, i.e. corpsymps (to borrow a construction), despite Obama’s denial of membership. On the other hand, Obama was running further left in the primary than he did in the general, so he may have been seen by the corporate interests as less of an ally.

Then.

Bricker · January 21, 2010, 4:53pm

Actually, Part IV was 8-1, with only Thomas dissenting.

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