. . . 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. -Excerpt from President Barack Obama’s State of the Union Address, Jan. 27, 2010.
At this point in the Obama Presidency, his tenure has been dominated by efforts to upright the economy; transitioning out of wars–from Iraq to Afghanistan–push towards health care reform; as well as the unexpected loss of Ted Kennedy’s Senate seat to a Republican; something that may well have an adverse effect on the Democrats’ ability to pass legislation during the remainder of his tenure.
One other development, possibly not as familiar to the general public but generating considerable debate within the political parties, has been the Supreme Court’s Jan. 21st decision to overturn two previous legal precedents that regulate the bankrolling of political elections.
This action inspired the President (a former professor of Constitutional law) to make the above reference during his State of the Union, which prompted Supreme Court Justice Samuel Alito to mouth the words “not true” in full view of the media, who of course, jumped on it.
The decision, Citizens United v. Federal Election Commission (FEC), 558 U.S., has triggered scores of responses by political observers about its implications in the coming elections as well as speculation on how political contests will change in the future.
The FEC is an agency chartered in 1975 to regulate the various components of campaign financing such as disclosure of funding sources, public funding, limits on contributions, and so on.
The plaintiff, Citizens United, is a conservative nonprofit advocacy group that generated attention because of its 2008 documentary “Hillary: The Movie,” which presented an unflattering portrait of then-Presidential candidate Hillary Rodham Clinton.
The case in question revolved around Citizens United’s right to promote the film and the controversy that resulted, when its cable broadcast was blocked on the eve of the January Presidential primary in 2008. Critics of the movie saw it as a prospective political weapon (more an advertisement than a documentary) likely to sway the upcoming contest between Clinton and Obama for the Democratic Presidential Nomination.
There has long been the suspicion among the disenfranchised that the political process has been slanted in favor of the rich and powerful. Various special interest groups, among them the National Rifle Association (deemed the most influential lobbying organization in a 1999 Fortune magazine article), are known for their persuasive impact on lawmakers in government.
The Citizens United decision brought with it the fear that “fat cat” concerns will now be able to dominate an already corrupted system with no safeguards or prohibitions.
Kerman Maddox has been a mainstay of Democratic politics since he was an aide to the late Mayor Tom Bradley. Currently a principal with the public relations consulting firm Dakota Communications and a fundraiser for the victorious Obama campaign, Maddox shared his assessment of the Supreme Court verdict with OurWeekly.
“Essentially, the Supreme Court in a 5 to 4 decision, ruled that the government cannot ban political spending by corporations in candidate elections. This means that corporations, unions and other special interest groups can spend unlimited sums of money to elect or defeat a candidate for public office at the federal, state or local level.
“I suspect this decision will encourage Senate and Congressional candidates, who do not have favorable voting records on issues that affect big corporations like oil companies, insurance companies and Wall Street banks, to think long and hard about running for re-election. Most analysts believe this ruling will favor Republican candidates in partisan elections, because they traditionally have been allies of big corporations, who have much more money to spend than organized labor, which traditionally has been supportive of Democrats.”
Some political observers believe the most immediate consequence to the Democratic Party may come with the mid-term elections this coming November, when 36 of the Senate’s 100 seats will be up for grabs. The court’s decision to ease campaign-spending limits will, in the view of some analysts, give the GOP an unfair advantage by allowing the party to potentially inflate its already substantial war chests. This potential shift in financial donations may also inhibit groups, who might have previously been willing to compromise with the Obama administration on key issues such as health care.
Democratic policy makers are already fearful that they will not be able to realize their and the President’s agendas without a clear cut majority. The recent retirement of Senator Evan Bayh of Indiana (D-Indiana) and the prospect of his vacant seat being won by a Republican (giving them a majority vote and additional leverage to override Democratic legislation) further complicates matters.
Monetary influence: Free speech?
“It would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” -Justice John Paul Stevens, one of the four (out of nine Justices) dissenters in the Citizens United v. Federal Election Commission.
Within the Supreme Court itself, the voting was predictably divided between the justices normally aligned with the liberal (Breyer, Ginsburg, Sotomayor, and Stevens) and conservative wings (Alito, Scalia, Thomas, and Chief Justice John G. Roberts) with the justice generally considered the “swing” vote– Anthony Kennedy–siding in this case with the concurring conservatives (although he is the principle author of the ruling). The two cases it reversed are actually part of a debate over a concept that has been argued over since the late 1800s: Businesses or commercial projects may be seen as individuals in a court of law, and thusly entitled to the same civil liberties under the Constitution.
The first, Austin v. Michigan Chamber of Commerce, (494 U.S. 652), was a 1990 ruling banning corporations (in this case, a nonprofit, the chamber of commerce) from using their finances to support or oppose individual candidates with the reasoning that their “wealth can unfairly influence elections.” This edict was based on the assumption that “. . . corporate wealth can unfairly influence elections, when it is deployed in the form of independent expenditures, just as it can, when it assumes the guise of political contributions” (passage pulled from Austin v. Michigan).
This ruling, in turn, reversed earlier litigation–Buckley v. Valeo, 424 U.S. 1 (1976)–which held that spending money to influence elections might be considered a form of free speech (although it placed limits on contribution amounts).
In issuing this decree, the Supreme Court invoked the First Amendment of the Constitution’s Bill of Rights (guaranteeing freedom of speech) in order to preserve “the integrity of the electoral process.” More specifically, it held that “. . . limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication (Buckley v. Valeo).
This poses the question: Is my right to voice my opinion directly related to the size of my pocket book, and my willingness to distribute its contents?
These pieces of legislation are merely the two most prominent of a slew of laws meant to regulate campaigns, especially after the 1972 Watergate scandal. But going back even further to Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), the courts held that an inanimate object (the railroad) deserved the same consideration given an individual (in terms of write-offs) when confronted by the county tax collector.
Another ironic legal precedent was determined a few years earlier in a ruling that was initiated for the protection of newly liberated slaves during the turmoil of the Reconstruction Era (1865-77). The Fourteenth Amendment (1868) made all Blacks “born or naturalized in the United States” full-fledged citizens entitled to the same Constitutional rights provided for every other U.S. citizen.
In one of its first interpretations (1873), it was given a new, broader reading to include New Orleans’ butcher industry which resisted efforts to make them transport and slaughter their livestock in a public facility at great inconvenience, in a decision that became known as the Slaughter-House Cases, 83 U.S. 36.
In order to safeguard the city’s health from the assorted animal waste including blood, dung, entrails and so froth that were a by-product of the slaughtering business, a private company was chartered to rent out space south of New Orleans to ensure the city’s water supply would not be contaminated. Individual butchers countered by filing a lawsuit alleging that this constituted a monopoly by giving unfair advantages to a small minority (the chartered firm, The Crescent City Live-Stock Landing and Slaughter-House Company) over the rest of the community, specifically The Butchers’ Benevolent Association of New Orleans.
They alleged that they were inhibited from pursuing their trade because they were being denied the due process, privileges or immunities and equal protection clauses covered in the Fourteenth Amendment, in essence treating them in a discriminatory manner by forcing them to work in the designated area at additional expense and inconvenience.
Their attorney argued that the 14th Amendment was not limited to classification of individuals by race, but should cover the rights of those trying to earn a living by legitimate means. The court eventually ruled against them, the edit issued by a judge who’d previously been a physician, and was influenced by the possibility of cholera (a water-born disease responsible for millions of deaths during the 1800s).
Nineteenth century legal precedent also introduced the idea of companies as individuals, with all the rights and privileges associated with the definition. Modern legal explanations do not involve the concerns of meat cutters or the newly emancipated. Liberal advocates suggest even if large corporations are viewed as individual entities, they differ from isolated voters by virtue of the “deep pockets” they possess, and the competitive advantage they represent. They argue that it erodes a basic tenet of democracy, a “level playing field” in which all of the citizenry may participate.
Mary Boyle of the citizens’ lobby and advocacy group Common Cause explained to OurWeekly that under the new ruling, corporations, unions and the like still cannot give directly to a given candidate, but are free to mount their own independent campaigns to endorse or impede the chances of election for political contestants. She rejects the notion that large organization’s free speech was restricted since their huge resources ensured them scores of opportunities (aside from outright financial gifts) to indirectly influence the political process, compared to individual citizens.
In an interview with OurWeekly, Professor James L. Taylor said the U.S. Constitution has historically been slanted toward the interests of big business and commerce, citing the period between 1787 and 1808, when the government assumed a “hands off” policy on slavery (although it prohibited additional slave transport from the Motherland).
This latest court decision is notable merely because it signals the opening of a floodgate of influence, causing Taylor to ask bluntly, “can we still call our political system a representative democracy?” Currently serving as president of the National Conference of Black Political Scientists and as a professor at the University of San Francisco, Taylor is the author of the upcoming “Sons of Thunder: Malcolm X, Louis Farrakhan and the Haunting of America,” to be printed by Lynne Reinner Publishing.
Continuing, the professor makes a connection between policies of different eras:
“. . . it would be wrong to suggest that this ruling in favor of corporate voices is a betrayal of the founding principles of the U.S. Constitution. In fact, the Constitution has always granted a preferential option for wealthy, private individuals and entities. The ability of Congress to regulate interstate commerce in every category of business except the slave trade is the clearest, early example of such a preferential option.”
Tipping the scale for Individual rights
. . . ACLU policy has been that limitations on contributions or expenditures for the purpose of advocating causes or candidates in the public forum impinge directly on freedom of speech and association, and that their implementation poses serious dangers to the First Amendment. The policy states that the appropriate civil liberties approach is to expand, not limit, the resources available for political advocacy, and states that public financing of campaign activity is a promising way to facilitate the opportunity for political participation. -Statement on campaign finance from ACLU press officer Pamela Bradshaw.
Less anyone think this is a clear-cut case of big business/conservative sensibility versus liberal advocacy of the common man, let us consider the position of the American Civil Liberties Union (ACLU). Since its 1917 inception, this venerable institution has been the traditional adversary of conservatives and Republicans, but at the same time adheres to its mission of upholding “the individual rights and liberties guaranteed to every person in this country by the Constitution.” Towards that end, it has sometimes found itself in questionable company, notably when it championed the efforts of the American Nazi Party to hold a political demonstration (which never materialized) in the predominately Jewish town (many of them Holocaust survivors) of Skokie, Illinois, on the grounds that their right to do so was covered under the First Amendment (free speech) of the Constitution.
Once again invoking freedom of speech, the ACLU has for the last 20 years held the position that restrictions on campaign contributions amounted to infringement on political participation, which in turn violated free speech. Curiously, the powerful Southern California branch of the ACLU broke with the national position, as explained in this quote to OurWeekly from executive director Ramona Ripston:
“Every ACLU affiliate has the independence to adopt positions that differ from the national organization. The ACLU of Southern California has believed in campaign finance reform since the mid-1970s. Our position is that limitations on contributions are justifiable, so that one sector of the population cannot overcome the rest of society.”
As this article went to press, a committee formed by the national board of the ACLU was in the process of studying the topic of finance reform to determine whether the organization should adjust or modify its current position on campaign finance.
The money bomb
“Money is the mother’s milk of politics.” -A 1966 quote by flamboyant California political deal maker, power broker, and shot-caller Jesse M. (Big Daddy) Unruh.
The emergence of the fundraising technique called the “money bomb” is interesting. This method was utilized in recent years by a number of political candidates including Ron Paul in his recent Presidential bid. Money bombing is merely a concerted effort to generate funding within an abbreviated period of time. It may include the use of traditional and Internet-based methods to generate income rapidly. Politicians, including Hillary Clinton, Dennis Kucinich, John McClain and President Obama are said to have generated millions of dollars within a span of 24 hours using this method.
In addition to generating cash flow, it can spawn added publicity for a campaign, and is said to have been a factor in the come-from-behind win by Scott Brown for the Senate seat vacated by the late Ted Kennedy. It is not known whether this funding came from corporate interests or otherwise, and it remains to be seen how the court’s decision will or will not impact this fad. Since the Republicans are, by reputation, the party of “Big Kahuna” corporate types, it is assumed that they will be the major benefactors should the money trend continue.
Pro and con
“If you can’t eat their food, drink their booze, screw their women and still vote against them, you have no business being up here.” -Big Daddy Unruh on politicians’ relationships with lobbyists.
By its nature, politics is an expensive proposition. The obvious concern here is whether an office seeker can accept a sizable donation and not let it influence their decision-making on legislation or awarding a contract associated with the contributor later on down the line. Advocates of the decision say that lifting the ban on corporate spending will give the floundering economy a much needed shot in the arm as millions extra will be spent in the media via print, radio and television ads.
Meanwhile, as the ink dried on 558 U.S., Democratic lawmakers worked overtime drafting counter legislation, elements of which will likely seek to inhibit special interests’ (particularly those with foreign origins) ability to spend and influence the political process.
Common Cause’s Mary Boyle is withholding judgment on the future ramifications of the ruling in terms of its impact on the next presidential election, but is steadfast in her belief that it is bad for democracy.
Hope for fixing a broken system may come from the “clean elections” movement manifested in Senate Bill 752 and House Resolution 1826, the Fair Elections Now Act, which calls for “clean” elections in senate and house races, respectively.
In the wake of Citizens United v. Federal Election Commission, liberal factions are expecting to herald a new age of repression as Republicans feel free to pursue their own policies (a blog on the Slate magazine website asked provocatively After Citizens United, “Is Roe v. Wade Next?”).
Another compelling point is the fact that all large corporations do not automatically align themselves with the Republicans. A number of industries including the entertainment, environmental and technological sectors are commonly regarded as bastions of liberalism, and largely the domain of the Democrats. Corporations also habitually make sizable donations to both political parties as a way of “hedging their bets;” a prime example being Microsoft, which gave $2,396,960 and $899,981 respectively to the Democrats and Republicans in 2008 (data courtesy the Center for Responsive Politics and its website OpenSecrets.org). Investment firm Goldman Sachs followed suit with donations of $4,461,988 (Democrats) and $1,469,311 (Republican) in that same year. Financing both sides of a given campaign is done in the hope that the donators’ interests will be addressed regardless of who actually wins in an election.
Professor Taylor dismisses the idea that this methodology will somehow balance things out, declaring:
. . . the monied classes and entities in the United States–and abroad–will be able to exercise free speech with a louder voice than ordinary citizens. Even if “left,” “right,” and “moderate” interests in U.S. society are able to cancel one another out, in terms of their influence on the political process, they all muffle the voice of the “demos,” the people.
At the beginning of this article, we pointed out that this issue of campaign reform is not as high profile a topic as health care, jobs, and the state of the economy. And yet Citizens United v. FEC is directly connected to these other, possibly better-known, agendas because it can impact the process by which they can be implemented or impeded. It is this factor that possibly generates such extreme emotions on both sides of the political fence.
Conceding the political process to big business may negate the potential of the Internet as well. This last election was a landmark not just for the precedent of a Black person’s accession to the Presidency, but also for his campaign funding through a consortium of (comparatively) small groups and individuals not normally associated with political clout.
A cadre of youthful entrepreneurs who cut their teeth in the technology boom–such as FaceBook co-founder Chris Hughes–lent their expertise to the Obama campaign. Their efforts, especially in the realm of social networking, were a major factor in the unprecedented political fundraising success ($656,357,572 in individual contributions alone, according to OpenSecrets.org) that led to the November triumph.
Just as the computer network has transformed business, education and leisure, it has afforded opportunities for previously inconsequential or marginalized groups to assert themselves and take an active role in the political process. The advance of technology means that more people have access to government participation and public debate then ever before.
The debate is by no means over for this particular ruling. Chief Justice Roberts expressed his uneasiness about the President’s State of the Union remarks to a group of law students at the University of Alabama on the Tuesday before this article went to press.
As previously mentioned, people directly and indirectly involved with the election process have mounted their own responses, with Democratic law makers toiling over the President’s Day holiday to create legislation to counter or at least soften the impact of the decision. This is sure to launch more deliberation, pro and con. Either way, additional fire works are sure to come.
Below are additional sources on campaign finance reform: