The ability of the people to limit political campaign spending is now under assault by both the Republicans and the Democrats.
Corporations have been banned from making any contributions to candidates for federal office since 1907 and banned from making any "independent expenditures" since 1947. Nor have unions since 1947 been allowed to make contributions or independent expenditures for or against federal candidates.
But the U.S. Supreme Court is probably going to change that, any day now. Justices Roberts and Alito are leading the charge to declare unconstitutional (under the First Amendment) the ban on using corporate money for "independent expenditures" to support or oppose candidates. The Court adopted a special rush schedule to decide the Citizens United, Inc. case, so that the federal ban on corporate "independent expenditures" is destroyed prior to the 2010 Congressional elections. This will enable corporations to spend unlimited amounts to mislead voters, with massive media campaigns, about the beliefs and policies of the candidates they support (or oppose). It also sets the stage for the Court to then declare that, since (1) independent expenditures must be unlimited and (2) candidates themselves should be in control of their messages to voters, there is no compelling reason to limit contributions to candidates by anyone, including corporations, unions, and wealthy individuals. This would destroy campaign finance reform in the United States for all candidate races, including federal, state, and local.
On the Oregon level, the Secretary of State and the Attorney General, both Democrats, continue to refuse to enforce any of Measure 47 of 2006, enacted by Oregon voters three years ago as the most comprehensive and strict campaign finance reform law in America. Instead, they continue to allow unlimited political contributions and unlimited expenditures. Linda Williams and I are representing citizens who are suing the Secretary of State and Attorney General to require that they enforce the law. The case is now in the Oregon Court of Appeals, where briefing was complete 7 months ago but there is no schedule for decision or even oral argument. The Oregon Attorney General’s Office has refused to agree even to expedite the case to the Oregon Supreme Court.
Campaign corruption is not limited to one major party. The Democrats in Congress now get more campaign money from corporate executives than the Republicans, because the Democrats are in power. But watch out for 2010. With unlimited corporate "independent" money, the Republicans could make a striking comeback, which would then doom even the mild reforms proposed by Obama.
In Oregon, the scene could get even worse. The Oregon Supreme Court is now considering a challenge to the Oregon law, enacted by initiative over 100 years ago, that bans making campaign contributions in a false name. Hard to believe, but the Oregon Court of Appeals earlier this year did not find a majority of the 10 judges (en banc) in agreement on any single rationale for upholding this law. Instead, a combination of two rationales were cobbled together to uphold the law, on a 6-4 vote, and send it to the Oregon Supreme Court, where a decision could issue any day. If prohibiting campaign contributions in a false name is a violation of "free speech," then the government cannot require accurate reporting or disclosure of campaign contributions at all. Candidates in Oregon should then expect to receive massive contributions from "anonymous." They could reject the anonymous contributions but place themselves at a huge disadvantage to the candidates who accept them. And, if many Oregon politicians, from both major parties, decide to take the anonymous money, it will not be a potent campaign issue for their opponents to use against them.
What can we do? On the Oregon level, call or email Attorney General John Kroger and tell him to enforce the law (503-378-4400; email@example.com) and Secretary of State Kate Brown (503-986-1523; firstname.lastname@example.org) and ask them to enforce the law.
On the national level, the assault on campaign finance reform by the U.S. Supreme Court can now be stopped only by changing the Court itself, under the control of the appointees of Reagan, Bush I and Bush II. The current 5-4 majority against campaign finance reform will likely persist for many years, as the youngest justices are generally the most hostile to limits on campaign contributions and expenditures. The number of justices on the Court is determined by Congress. Congress can enact a law to change the number, which has been changed 8 times in the past and has ranged in size from 5 to 10. A simple majority in the House and Senate. along with the President’s signature, could add two justices, allowing Obama to quickly establish a majority that would uphold the campaign finance laws that are critical to maintaining any semblance of democracy.
Will the Democrats in Congress, with their large majorities, do this? Probably not, because releasing unlimited corporate money would benefit them as well, protecting them against any populist challenges in their primaries or the emergence of progressive minor party candidates. The same Court decision would also unleash unlimited union spending to benefit Democrats further.
But aren’t 60 votes needed to pass anything in the U.S. Senate, since current Senate rules require 60 votes to stop a filibuster? Absolutely not. Did the Republicans need 60 votes in order to confirm the opponents of campaign finance reform to the U.S. Supreme Court? Clarence Thomas was confirmed with only 52 votes by a Senate controlled by 57 Democrats, 11 of whom voted to confirm Thomas, perhaps the most right-wing justice in history. Samuel Alito was confirmed with only 58 votes. Apparently, 60 votes is needed only if the proposed action is in the public interest. Anything in the corporate interest takes only 51 votes.
Some folks say this is because the Democrats lack courage or are "wimpy." But that is not the problem. The Democrats and the Republicans are both chosen for office by a somewhat restricted big money system. If they can get campaign finance limits lifted without getting blamed for it by the public, all the better for them. They can just blame the U.S. Supreme Court, while happily taking hundreds of millions of dollars in campaign contributions and benefiting from what will probably amount to over $1 billion in "independent expenditures" by corporations and unions, with most of it going to the incumbents. The Democrats talk populist but don’t govern that way. Ralph Nader has said, "The major difference between the Democratic and Republican parties, with a few exceptions, is the velocity with which their knees hit the floor when big corporations knock on their door."
Can enlarging the Court work? The mere public announcement by Franklin Roosevelt (FDR) in 1937 of a bill to increase the number of justices (the "court-packing plan") resulted in the famous "switch in time that saved nine," when Justice Owen Roberts then suddenly reversed his anti-New Deal stance so that Congress would be discouraged from adding more justices. Taking the initiative to change the court worked for FDR, almost immediately. Then, FDR in the next 6 years replaced 8 of the 9 justices, who retired or died.
We need a national campaign to "enlarge the Court" now. Check out www.packthecourt.com and get involved.
DAN MEEK is a lawyer in Portland, Oregon. He can be reached at: email@example.com