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Times Topics: Campaign Finance
IN just seven years, the Supreme Court has declared most of the fabled McCain-Feingold law unconstitutional. The court has struck down the law’s bans on contributions by minors, on independent spending by political parties and on issue ads within 30 days of a primary or 60 days of a general election, as well as restrictions on “millionaire” candidates. With last week’s ruling in Citizens United v. Federal Election Commission, the court has now declared that corporations and unions may spend money on political advertising that urges the election or defeat of a candidate for public office.
The reaction was swift and intense. Conservatives and libertarians praised the ruling’s preservation of the First Amendment and freedom of speech. Liberals and reformers expressed horror. President Obama predicted a “stampede of special-interest money in our politics” and declared, “I can’t think of anything more devastating to the public interest.” (Disclosure: I filed a brief with the Supreme Court in support of Citizens United.)
One would think from all this that corporations and unions are now free to buy candidates on the open market. But what, if anything, will be different in our elections?
Will corporations and unions be able to give money to candidates or political parties? No. Federal law, which regulates campaigns for president, the Senate and the House, prohibits such contributions. The ban was left untouched by the Supreme Court.
Can corporations spend money in cahoots with candidates and political parties? No. The Supreme Court decision addressed only “independent expenditures,” which are, by definition, “not coordinated with a candidate.” Monies spent in collaboration with candidates or parties are treated as contributions — and are still banned.
Perhaps all of this corporate spending will be secret? Wrong again. The Supreme Court upheld the laws that require any corporate or union spender to file reports with the Federal Election Commission within 24 hours of spending the first dime.
What about the “stampede of special-interest money”? The president’s comment implies there must not have been any corporate or union spending before Citizens United. In fact, in the final days of the Massachusetts special election for senator, corporations and unions spent at least $2.7 million on television and radio advertising. How do we know? Those reports were filed with the F.E.C. And while this was a good deal of spending, it was not unusual.
So what will actually occur as a result of the Citizens United case? The answer is at once mundane and momentous.
Since the 1970s, Congress has passed an assortment of laws that banned anyone from spending money on independent ads — laws that were uniformly declared unconstitutional when they restricted spending by individuals, political action committees and political parties. But in a 1990 decision, Austin v. Michigan Chamber of Commerce, the court upheld a ban on corporate spending to expressly advocate the election or defeat of a candidate.
Because of the 1990 ruling, corporations and unions have been limited to so-called issue ads, which usually end with statements like “call Candidate Jones and tell her” — take your choice — “to stop raising taxes/ support health care reform/ support alternative energy sources.” Now that Citizens United has overturned Austin, corporations and unions can run independent ads that contain words of express advocacy. So instead of “Call Candidate Jones and demand that she not raise taxes,” it can be: “Vote for Candidate Smith because Candidate Jones wants to raise taxes.”
There is also no factual basis to predict that there will be a “stampede” of additional spending. As the court noted, 26 states and the District of Columbia already permit independent corporate and union campaign spending. There have been no stampedes in those states’ elections. Having a constitutional right is not the same as requiring one to exercise it, and there are many reasons businesses and unions may not spend much more on politics than they already do. As such, the effect of Citizens United on the 2010 campaigns is debatable.
However, the effect of Citizens United on further legislative meddling with campaign speech is clear. In recent years, Congress interpreted its power to regulate campaigns as a license to limit, restrict, burden and confuse anyone who wished to engage in political campaigns.
But the court has reminded us that the First Amendment is not a license to regulate — it is a limitation on Congress. As the court said in its ruling, “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”
While this may be disheartening to Washington lawyers and lawmakers, it should be a breath of fresh air to everyone else. The greatest benefit of Citizens United is that it will restrain Congress from flooding us with arcane, burdensome, convoluted campaign laws that discourage political participation.
The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, “fat cat” bankers, health insurance companies and any other industry or “special interest” group when they can’t talk back.
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