The Supreme's Overdue Decision on Campaign Funding

Sunday, 8 November 2009, 1:10 pm
Opinion: Michael Collins

The Supreme Court of the United States will soon announce a major decision on our lightly controlled system of campaign funding. Will it retain some limitations on corporate influence or will the court blow the lid off and cause a perpetual flood of unrestricted corporate contributions?

An additional outcome may surprise and shock the public.

If the Supreme Court overturns the lower court's decision, foreign nationals, corporations, and governments with partial ownership of U.S. corporations will, in effect, end up contributing to and influencing U.S. candidates in federal elections.

The Supreme Court surprised many when it agreed to hear an appeal of a lower court ruling that enforced key sections of the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) -- Citizens United v. Federal Elections Commission (FEC).

In January 2008, the Federal District Court, District of Columbia upheld an FEC action that barred Citizens United, a right wing nonprofit corporation, from airing an extended attack on Hillary Clinton called Hillary: The Movie. Citizens United is headed by David Bossie, a well known political enemy of the Clintons. Citizens' lead counsel, Ted Olsen, is an alumnus of the infamous 1990's Clinton bashing Arkansas Project.

The lower court found The Movie violated provisions of McCain-Feingold since some funding for the movie came from the general treasury of Citizens United, rather than a segregated account for political action, e.g., a Political Action Committee (PAC). The Movie had the sole purpose of convincing viewers that Clinton was unfit for office, making it an example of electioneering communications -- the overriding purpose of which are to advocate for the election or defeat of a candidate. And The Movie was planned for broadcast both 30 days prior to Democratic primaries and 60 days prior to the general election (had Clinton won the nomination), blackout periods for electioneering communications.

In its appeal, Citizens argued that broadcast restrictions in McCain-Feingold should be overturned to allow unrestricted electioneering communications funded directly from corporate treasuries.

But the appeal also served as a vehicle for lifting virtually any ban on corporate giving. In 1990, the Supreme Court ruled that corporate funding of campaigns from general funds could be restricted. The heart of the decision is found here:

"they (the Michigan laws) are justified by a compelling state interest: preventing corruption or the appearance of corruption in the political arena by reducing the threat that huge corporate treasuries, which are amassed with the aid of favorable state laws and have little or no correlation to the public's support for the corporation's political ideas, will be used to influence unfairly election outcomes. Justice Marshall, Austin v. Mich. Chamber of Comm., 1990

Lead counsel for Citizens United, Ted Olsen, argued that "Austin was wrongly decided and should be overruled." He counters with another case that claimed,"First Amendment’s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion.” Ted Olsen, Merits Brief, p. 30, Sept. 9

This challenge to the Austin decision is the true threat within the Trojan horse argument over broadcast restrictions on political hit pieces. The goal of this appeal is nothing less than the legal treatment of corporations as the equal of individual citizens and lesser groups in the political process resulting in an even greater advantage for corporations to control elections.

"We are the World"

During oral arguments before the court, Olson argued that McCain-Feingold unlawfully restricts the First Amendment rights of U.S. corporations. Justice Ruth Bader Ginsburg had this exchange with Olson:

MR. OLSON: What the Court has said in the First Amendment context, New York Times v. Sullivan, Rose Jean v. Associated Press, and over and over again, is that corporations are persons entitled to protection under the First Amendment.

JUSTICE GINSBURG: Would that include --

MR. OLSON: Now, Justice --

JUSTICE GINSBURG: Would that include today's mega-corporations, where many of the investors may be foreign individuals or entities?

MR. OLSON: The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.

JUSTICE GINSBURG: Own many shares?

MR. OLSON: Pardon?

JUSTICE GINSBURG: Nowadays there are foreign interests, even foreign governments that own not one share but a goodly number of shares.

Citizens United v. Federal Elections Commission, Oral Arguments, pp. 4, 5, Sept. 9, 2009

Justice Ginsburg created a poison pill by putting on notice any Supreme Court majority that overturns the lower court decision: your actions will allow foreign funding for U.S. campaigns. Any foreign entity could simply exercise an existing or newly acquired ownership position in a U.S. corporation to demand services from that corporation's latest wholly owned candidate.

The current bans on direct corporate contributions and contributions from foreign entities would become meaningless. The influence of the "corrosive and distorting effects of immense aggregations of wealth" obtained through the control of puppet politicians would submit all of us to the vicissitudes of balance sheets and the salary and bonus demands of board chairmen all over the world (to an even greater degree than we now experience).

Supremes Green Light Foreign Money in U.S. Elections! How well will that fly with citizens in the current political climate? Does the Supreme Court even care?

Class of 2000 Reunion

Two alumni of the Bush effort to stop the Florida 2000 recount, freeze in place various voting rights violations, and prevent any real judicial review of a flawed election are reunited in this case. Chief Justice Roberts was recognized for his contributions to election chaos as then Florida Governor Jeb Bush's legal advisor. His contributions were less than helpful. Ted Olson represented George W. Bush in the Supreme Court case that stopped the recount. He also served as a key strategist for George W. Bush's Florida 2000 recount efforts.

How coincidental that Chief Justice Roberts reached out to his Bush campaign 2000 alumnus Olson by agreeing to hear a case that surprised many when it was selected for the Supreme Court docket.

How ironic that the case presents the opportunity to bring corporate funding into U.S. politics in a way that would end any pretences of democracy as we know it. History waited just nine years to repeat itself.

N.B. Wouldn't a reasonable person conclude that Fox News violates the McCain-Feingold Act on a regular basis? Link

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