The Supreme Court could be one step away from striking down a century-old ban on corporate spending on elections and enshrining corporations with the same ability to contribute to a candidate as an individual.
The court heard continued oral arguments this morning in the case of Citizens United v. FEC, which addresses whether a group should have been able to use corporate money to distribute an anti-Hillary Clinton documentary in the middle of last year’s primary election. Citing the Bipartisan Campaign Reform Acts ban on corporate money, the FEC said no; appellate courts agreed, and the case made its way to the Supremes. The Supreme Court had an initial hearing in April, but scheduled another hearing outside of their regular term to specifically address the question of whether the long-standing ban on corporate and union money in elections was constitutional.
Reform advocates had hoped that the court would avoid making a decision with sweeping constitutional (and precedent overturning) implications. If they had to rule in favor of Citizens United they could rule more narrowly: that video-on-demand constitutes a different kind of expenditure than commercials or that Citizens United was a unique kind of corporation that should be subjected to different rules.
Despite the best efforts of four other Justices to argue for restraint, the strongest impression was that they had not convinced the two members of the Court thought to be still open to an exercise in modesty. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.
If this does in fact happen—and the ruling is as sweeping as predicted—federal and state law would be overturned, and corporations could start writing checks directly to candidates. This infusion of money could flood television, radio, and internet with political ads in unprecedented ways.
The good news is that voluntary public campaign financing systems would remain viable even in the event of a sweeping ruling that overturns the corporate money ban entirely. Participating Voter-Owned Elections candidates could agree to only accept small contributions and refuse corporate money as a condition for receiving public funds. Indeed, the only way to counterbalance corporate expenditures might be to infuse more public money into the system so that candidates have a way to run without relying on these entrenched interests. But the change would no doubt have a deleterious impact on our democracy, making it much easier for beholden candidates to win through sheer dollar power.
As the New York Times wrote in an editorial published yesterday (and reprinted in today’s N&O), we will all be worse off for it. They write :
If the court races to overturn federal and state laws, and its well-established precedents, to free up corporations to drown elections in money, it will be swinging for the fences. The American public will be the losers.