Friday, January 22, 2010

Supreme Folly

A bitterly divided Supreme Court ruled yesterday that the government may not ban political spending by corporations, labor unions or other organizations in elections. The court’s majority in “Citizens United v. Federal Election Commission” swept aside a century-old doctrine in election law, ruling that the campaign finance restriction violated the First Amendment’s free speech principles. The dissenting justices said that opening the floodgates to corporate money will corrupt democracy.

Reformers are outraged by the Supreme Court’s decision, which overruled its own precedent on independent corporate expenditures. As Nate Persily points out, as a practical matter the decision was just the last nail in the coffin; the Supreme Court had already substantially undermined the federal ban on independent corporate expenditures in earlier decisions.

This decision by the Supreme Court may well dwarf in impact the results of Tuesday’s election in Massachusetts. It is breathtaking in its scope: it overturns doctrine dating back a century and laws upheld in 1990 that banned corporate managers from directly spending shareholder money in elections.

A Constitutional amendment may be needed to restore the law to where it was at 9:50 yesterday morning.

There was no trial record; no reason to reach the decision; a rushed re-argument (followed by a delay that put this neutron bomb square into the middle of the political season). This matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court (2000 presidential election). 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.

The ban on direct corporate spending in elections goes back to the 1907 Tillman Act, which prohibited corporate contributions in federal campaigns (it was assumed to cover independent expenditures, too). In 1947, the Taft-Hartley law made explicit that corporations and unions could not directly spend their treasury funds on electioneering. Congress -– every time it has passed a law to deal with this -– only has strengthened this prohibition.

Why will this matter? Isn’t there a lot of money sloshing around in politics already? Consider Exxon-Mobil. In 2008, its political action committee (PAC) raised about $1 million from its employees and offices. Its profits that year, which it was legally barred from pouring into politics, were $45 billion. It was illegal for Exxon to spend that money on elections; now with this decision, it will be legal. Exxon or any other firm could spend Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care, etc.

Justice Louis Brandeis (U.S. supreme court justice from 1916 to 1939) once said, “The most important political office is that of the private citizen.” Yesterday’s Supreme Court decision rejects Justice Brandeis’s view, raising corporations to new heights of power in our political system. In the wake of this decision, the light of liberty, within the United States, is flickering… on the verge of being extinguished… by our very own supreme court.