Vail Law: How have the campaign finance rules changed?
Vail, CO, Colorado
What did the high court do to campaign law?
Vail Law bug
In his State of the Union speech last week, President Obama directly addressed the justices of the United States Supreme Court who were in attendance, resplendent in their flowing ermine robes. Looking them directly in the eye, about halfway through the speech, the President said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”
In response to what he must have perceived as a personal assault, Associate Justice Samuel Alito, Jr., shook his head and mouthed what some thought was “No, that’s not true.”
Besides the clear break with decorum, what’s all the fuss about? What did the court do to so upset the President of the United States? And why was Justice Alito moved to so publicly (albeit subtly) take on what is, arguably, the most powerful person in the world?
What caused this?
The answer lies in the Jan, 21 decision by the court in Citizens United v. Federal Election Commission. In a 5-4 vote, the majority (Chief Justice Roberts and Associate Justices Scalia, Thomas, Kennedy and Alito), the court overturned two precedents – Austin v. Michigan Chamber of Commerce (a 1990 decision that upheld restrictions on corporate spending on candidate elections), and McConnell v. Federal Election Commission (a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 – known commonly as McCain-Feingold – that restricted corporate and union spending on political campaigns).
The case has its origins in the modern arena of political polarity and conflict. It involved a documentary called “Hillary: The Movie,” a caustic piece of political commentary and advocacy journalism (not qualitatively different than Michael Moore’s 2004 Bush attack piece, “Fahrenheit 9/11”). The film was produced by Citizens United, a conservative nonprofit corporation, and was released during the 2008 Democratic presidential primaries.
Citizens United lost its suit that year against the Federal Election Commission, and canceled plans to show the film on cable and to run television ads promoting it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet. The loss was appealed to the Supreme Court.
By the time the case arrived in Washington, it revolved, primarily, around the First Amendment rights of corporations. In reaching its decision, the court ruled that the government may not ban political spending by corporations in candidate elections.
Specifically, what the court held was that the Federal Election Commission had overstepped its constitutional authority when it barred Citizens United from running ads for the movie. The broader implications are far-reaching.
What’s the result?
Corporations are now free as they please to advertise in favor or against particular candidates, whereas before the ruling, corporations had to funnel contributions for ads through political action committees and there were limits on what could be spent. Now, however, other than disclosure for sums in excess of $10,000, there will be no limits.
The court ruled that the government has no business regulating political speech, including corporate speech, that the First Amendment right to free and unregulated speech is virtually sacrosanct. The dissenters vehemently argued that allowing corporate money to flood the political marketplace would corrupt democracy. Although the decision did not directly address them, the reasoning and logic of the majority opinion – and new law of the land – will apparently apply equally to labor unions.
What this represents is a tectonic shift which will likely have significant practical and political consequences. Simply put, the decision may reshape politics as we know it and the way elections are conducted.
President Obama called the decision “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
However one might disagree with the Court’s opinion, no one can doubt the earnestness with which it was approached. The five opinions in the decision total more than 180 pages, with Justice John Paul Steven’s impassioned dissent running 90 pages. In that dissent, Stevens pulled no punches in saying that the majority had committed a grave error in treating corporate speech the same as that of natural persons, that there are clear practical and philosophical differences between the two that should be respected by the law.
Eight of the justices (Justice Clarence Thomas dissenting) agreed that Congress may require corporations to disclose their spending and to run disclaimers with their ads. The majority opinion did not disturb bans on direct contributions to candidates, but the majority and minority disagreed about whether independent expenditures amounted to essentially the same thing.
Of significant concern is the torrent of corporate-sponsored attack ads that now could be unleashed, beginning this year.
Like it or not, Citizens United has ushered in an era of apparently unlimited corporate and union spending in elections. Some have criticized that from here on out, large multi-national corporations may be able to ingratiate themselves into the electoral process in ways antithetical to what the Founders has intended and even to “buy” candidates and access.
As Bob Dylan once observed, “it don’t take a weatherman to know which way the wind blows.”
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at firstname.lastname@example.org.
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