The Supreme Court ruled this morning against restrictions on corporations’ spending to influence election outcomes. On January 12, John Nichols filed the post below in anticipation of the ruling, offering history of campaign finance law and Sen. Russ Feingold’s analysis of the likely impact of the ruling.
More than one hundred years ago, after a 1904 president race that saw big life insurance companies pour money into the project of electing Republican Teddy Roosevelt, the defeated Democratic candidate, Judge Alton Parker, raised the question of whether presidents and congresses would simply be bought by corporations seeking policies that favored their interests.
“The greatest moral question which now confronts us is: Shall the trusts and corporations be prevented from contributing money to control or aid in controlling elections?” declared Parker.
Roosevelt recognized that when he relied on corporate money to overwhelm an opponent, he stood on the wrong side of democracy and put the American experiment at risk. That recognition made the 26th president a reformer. He called for full public financing of federal campaigns and told the Congress in 1905 that: “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.”
Roosevelt did not get full public financing, and real reformers are still struggling to achieve this most necessary of all electoral reforms.
But Congress did in 1907 pass the Tillman Act, which banned corporate giving.
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 — recognizing as both Democrat Parker and Republican Roosevelt came to that it was in the public interest to prevent trusts and corporations from controlling elections.
But the current Chief Justice of the Supreme Court, John Roberts, is a conservative judicial activist who has made little effort to disguise his determination to rearrange political rules to favor his political and ideological allies. And Roberts has worked hard to build a court majority in favor of dramatically reducing, and perhaps eliminating, constraints on corporate dominance of the electoral and governing processes.
The measure of Roberts’ success could come in short order, as the court is expected to release its ruling in Citizens United v. the Federal Elections Commission — a case the chief justice has managed and manipulated with the purpose of raising the issue of whether the people and their elected representatives have a right to enact regulations that assure (or at least hold out the promise of) free and fair elections.
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.
The court may not go as far as democracy campaigners fear.
But U.S. Senator Russ Feingold, the Wisconsin Democrat who has been in the forefront of campaign-finance reform efforts for the better part of two decades, is worried.
“This would be in my view, a lawless decision from the Supreme Court,” says the senator who gave his name to the McCain-Feingold law. “Part of me says I can’t believe they’ll do it, but there’s some indication they might, and that means the whole idea of respecting the previous decisions of the Supreme Court won’t mean anything anymore.”
A lawyer who chairs the Constitution Subcommittee of the Senate Judiciary Committee, Feingold notes with regard to controls on corporate campaigning: “These things were argued in 1907, when they passed the ban on corporate treasuries. It was argued in 1947, Taft-Hartley did this. The Supreme Court has affirmed over and over again that it’s not part of free speech that corporations and unions can use their treasuries (to buy elections).”
If the court does overturn both law and precedent to advance a corporate agenda, Feingold says, “It’s just an example of activism, and legislating by a court, if they do this.”
It is, as well, dangerous for democracy.
Says Feingold: “If they overturn a hundred years of laws, it means that corporations or unions can just open their treasuries (and) just completely buy up all the television time, and drown out everyone else’s voices.”