Supreme Court Campaign Finance Ruling
In a 5 to 4 party-line ruling on Thursday, the Supreme Court reversed a 1990 decision and also struck down a key element of the 2002 McCain-Feingold campaign finance reform act. The net result is that unions and corporations can now use their own money to call for the election or defeat of individual candidates. In doing so, the court essentially said that the First Amendment rights of unions and corporations trumped concerns that their money may have a corrupting or disproportionate effect on elections.
Although the First Amendment offers very broad protection ("Congress shall make no law...abridging the freedom of speech..."), congress and the courts have, over the years, narrowed or sought to narrow the boundaries, particularly when the rights of individuals, groups, or institutions were thought to be improperly or unfairly impinged by the speech of others. Individual campaign contribution limits are but one manifestation of such narrowing.
Naturally, a 5 to 4 party-line decision engenders skepticism. Was it derived from constitutionally sound reasoning, or just ideologically motivated? Of course, it can be both; they're not mutually exclusive.
Given the very expansive language of the First Amendment, it is, not surprisingly, open to a multitude of interpretations. In such complex situations, common sense is often the best guide.
The actions of the current and prior administrations, coupled with rapidly changing election/fund raising dynamics, demonstrate the soundness of this ruling. It would be difficult to argue that Bush 43 did not want to strip unions of power and influence. Similarly, there is no denying that Obama has corporations right in the cross hairs.
Therefore, isn't it reasonable that unions and corporations have every opportunity to defend themselves and their interests against such powerful onslaughts? The old logic simply isn't sensible any longer. Previously, as Justice Kennedy noted, the court upheld regulations on corporate speech based on the theory that the voice of ordinary citizens could be drowned out by corporations and their vast sums of money. 24/7 cable news and grass roots Internet fund raising have made that notion obsolete. There is no shortage of raiseable cash available to those on each side of an issue. Nor is there a limit on ingenuity.
Cash may still be king, but it now shares the throne with creativity. The Internet has changed the rules. The most resonate messages are no longer exclusively the domain of those with the fattest wallets.
Don't be fooled by the spin. This is a reasonable and fair decision. If precedent is based on conditions that are no longer relevant or true, then it is rational for that precedent to be struck down.
Justice Felix Frankfurter said, "If facts are changing, law cannot be static."
Although the First Amendment offers very broad protection ("Congress shall make no law...abridging the freedom of speech..."), congress and the courts have, over the years, narrowed or sought to narrow the boundaries, particularly when the rights of individuals, groups, or institutions were thought to be improperly or unfairly impinged by the speech of others. Individual campaign contribution limits are but one manifestation of such narrowing.
Naturally, a 5 to 4 party-line decision engenders skepticism. Was it derived from constitutionally sound reasoning, or just ideologically motivated? Of course, it can be both; they're not mutually exclusive.
Given the very expansive language of the First Amendment, it is, not surprisingly, open to a multitude of interpretations. In such complex situations, common sense is often the best guide.
The actions of the current and prior administrations, coupled with rapidly changing election/fund raising dynamics, demonstrate the soundness of this ruling. It would be difficult to argue that Bush 43 did not want to strip unions of power and influence. Similarly, there is no denying that Obama has corporations right in the cross hairs.
Therefore, isn't it reasonable that unions and corporations have every opportunity to defend themselves and their interests against such powerful onslaughts? The old logic simply isn't sensible any longer. Previously, as Justice Kennedy noted, the court upheld regulations on corporate speech based on the theory that the voice of ordinary citizens could be drowned out by corporations and their vast sums of money. 24/7 cable news and grass roots Internet fund raising have made that notion obsolete. There is no shortage of raiseable cash available to those on each side of an issue. Nor is there a limit on ingenuity.
Cash may still be king, but it now shares the throne with creativity. The Internet has changed the rules. The most resonate messages are no longer exclusively the domain of those with the fattest wallets.
Don't be fooled by the spin. This is a reasonable and fair decision. If precedent is based on conditions that are no longer relevant or true, then it is rational for that precedent to be struck down.
Justice Felix Frankfurter said, "If facts are changing, law cannot be static."
Chuck, does this include corporations that are based in US but owned by foreign entities?
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Sharon, you raise a good point. My understanding is that the court made no distinction between foreign and domestic corporations. That may have been inadvertent, or intentional to allow for future legislation and/or litigation. It wouldn't be surprising to see Congress act to definitively limit/exclude foreign corporations.
I believe that the Federal Election Campaign Act precludes foreign nationals (which includes U.S. subsidiaries of foreign corporations) from contributing funds in connection with any state, local, or federal election in the United States.
As I understand it, a domestic subsidiary of a foreign corporation may establish and/or contribute to a U.S. Political Action Committee (PAC) if certain conditions are met (e.g. foreign nationals are not involved in the operations or decision making of the PAC, etc.). The rules are slightly different depending on whether the PAC activity is directed at federal, state, or local level.
Perhaps a lawyer will chime in with some additional insight.
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Sharon, on page 46-47 of the Citizens United opinion, the court says that they don't have to reach the question of whether the government has a compelling interest in preventing foreign individuals or associations from influencing our nation's political process because the section of the law in question is not limited to corporations in foreign countries or funded predominately by foreign shareholders. So that sounds like foreign corps. are now free, after the ruling, to make expenditures the same as American corps.
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I believe it does not, but I may be mistaken. I work for a foreign owned and my understanding is that the company cannot contribute.
Another quick question on contributions. Does anyone have the address of Mr. AFL CIO. I noticed he contributed $450M to the last Democratic campaign. Interesting. I wonder what nationality he is? It is a strange name for a person. He obviously is going to have a lot of pull with the President. We certainly should not let a corporate entity have the same pull as Mr. CIO.
JTS
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He may be sharing bunk beds with the head of the SEIU. Remember him? He made 22 visits to the White House in the first several months of Obama's administration.
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You are correct regarding foreign company campaign contributions. After some back and forth comments on this blog re: that matter, it turns out that the initial response was accurate.
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I had not thought of this new ruling from that perspective. Very interesting. Thanks for the insight.
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There is certainly baggage associated with the decision, as there is with almost all Supreme Court rulings, but that's the price of not being an ala carte First Amendment supporter.
Thank you for participating.
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I found the reasoning behind the decision disingenuous. There are plenty of areas of the law where we decline to treat corporations as individuals, so to equate corporate speech with individual speech seems like a leap. The majority dwells on the fact that the corporations may be better equipped to analyze a certain issue or get out a particular message, given their unique resources. But it seems to me that candidates would be the most well-equipped to do so. So then why not overturn the other part of McCain-Feingold that the Supremes left intact, the part which prohibits corporate contributions directly to candidates? They justify this part of the law as a measure to prevent corruption (or the appearance of corruption, which are the two touchstones of the strict scrutiny test that the court employs in this area). But the court can't seriously be turning a blind eye to the minor difference in the potential for corruption between corporations making their own ads for candidates or giving directly to the candidates themselves, can it?
Another issue--if one is to believe Kennedy's stats that the ads at issue don't have a corrupting effect on politics and that the campaign finance law has failed in raising the public's trust in government all at the presidential level, the ruling might be ok in presidential politics, and I'll concede that those races are often so well-funded that perhaps the impending onslaught of ads won't make a big difference. But I have concern at the local election level. Enter corporations into smaller, less well-funded campaigns, and perhaps the connection of corporate/union spending on ads and political corruption (or the appearance of) looks stronger.
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It's too bad that McCain-Feingold doesn't have a severability clause, because we'd be better off if the entire bill were eradicated. It has been a hodgepodge of twisted logic and awful policy from the outset. Notwithstanding, it's still good to strike down a bad provision, even if others are left standing.
I am much less concerned with some volatile measure of public trust in government than with an apparatus that adequately allows disparate parties to fairly represent their interests--even if one of those parties happens to be a "big bad corporation." Those corporations suddenly weren't so powerful six or seven months ago when the full force of the White House was repeatedly dropping the hammer on them. The foundation of our system is much more important than the window dressing.
It would be wrong to argue that money doesn't matter in elections--it does, but its impact is being mitigated by creative grassroots coalitions that are effectively using the tools at their disposal to get messages out--just as loudly in many instances--as those who have virtually unlimited resources. Bloomberg's recent election in NYC is a good example of how the gap is narrowing. His outrageous spending still won him another term, but he was victorious by a margin far less than his eight to one expenditure advantage would indicate.
The system is by no means perfect, but the playing field is leveling due to the Internet and other outlets that enable/facilitate the banding together of interested parties to fight monied interests and/or those who control the bully pulpit. That is true at the federal, state, and local levels.
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Chuck,I largely agree with your thesis.I would also put forth the notion that the entire McCain-Feingold bill was misguided.My only reservation with the ruling relates specifically to the unions.It is not a matter of constitutional rights but plain old whats right.The inherent problem with union financial support of a campaign is as follows. If you consider compensation for your labor as private property and a portion of your private property is confiscated in the form of union dues and those dues are used to support a campaign that you oppose,this to me is an issue that needs to be addressed.
If I may drift a little further off topic before I close.It is good to discuss the merits of this ruling.However,let us not take our eye off of what would really begin to bring trust and transparency back to the election process. That being the policing of federal funding going to partisan organizations such as ACORN.I believe a wealthy ACORN has the ability overcome the efforts of many grassroots organizations in the 2010 election cycle.
Does your quote selection from New Deal justice Frankfurter come under the heading of "If the shoe fits..."
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Steve, union support for political issues and/or candidates is an interesting one. If a workplace is totally unionized (i.e. no option to work there without joining the union), then it's troubling (although not illegal) when dues are used in the fashion you describe. In instances where union membership is not forced, I don't see as big of an issue, other than what is manifest in any representative organization when the representative differs with the majority of its members. If the representative is perceived, over time, to be out of touch (and ultimately incorrect), then there should be consequences. Of course, union leadership often acts with impunity and without consequences in such matters (other than possible long-term erosion of membership).
I realize that the above is an oversimplification because one workplace may be totally unionized and another a mix of union and non-union, but the dues from both may go to the same national organization.
As you can tell from my convoluted response, it's a vexing problem without a perfect solution.
Regarding the Frankfurter quote, your description is apt. It certainly was not intended as justification for judicial activism, but rather an argument for getting it right when there has been a legitimate change in circumstances.
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