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The Supremes Have Opened the Floodgates

The Supreme Court’s decision in Citizens United v. FEC has opened the floodgates to corporate money in federal campaigns in ways we haven’t seen for nearly a century. While for decades corporations have been able to set up special accounts, called PACs, to accept contributions and spend them on political activities, they have not been allowed to spend money from their vast corporate treasuries in connection with federal elections. Citizens United v. FEC has changed all that.

In this case, the Court took a narrow campaign finance issue and decided a much broader one – whether a century of laws protecting against corruption in government, laws which have been repeatedly upheld as constitutional, should suddenly be overturned. While the core of the Bipartisan Campaign Reform Act (BCRA), often known as McCain-Feingold, isn’t affected by this decision, the decision does eviscerate longstanding campaign finance law.

Below are some key points about the decision, and how the Court’s move to overrule Austin v. Michigan Chamber of Commerce (1991) and portions of McConnell v. FEC (2003) will undermine our democratic process.

The Core of McCain-Feingold Isn’t Affected

It’s important to note that the central provision of McCain-Feingold , the ban on unlimited “soft money” contributions from wealthy interests to political parties, still stands. Even though the Court has allowed independent corporate spending on campaigns, the ban on soft money contributions will continue. Emboldened by this decision, opponents of campaign finance reform will almost certainly argued that the political parties must now be freed from the restrictions of the soft money ban, so this important reform must be defended.

Nonetheless, the Citizens United decision seriously undermines campaign finance laws as a whole, bringing about an unprecedented rollback of reforms created to strengthen our democracy.

How Unlimited Corporate Spending on Advertising May Impact Campaigns

Corporations have huge war chests that far exceed current spending in our political system. During the 2008 election cycle, Fortune 500 companies alone had profits of $743 billion. By comparison, spending by candidates, outside groups, and political parties on the last presidential election totaled just over $2 billion. That is a lot of money, but it’s nothing compared to what corporations and unions have in their treasuries.

The Supreme Court has now allowed unlimited corporate spending on campaigns. That means, for example, that Wall Street banks and firms, having just taken our country into its worst economic collapse since the Great Depression, could spend millions upon millions of dollars on ads directly advocating the defeat of those candidates who want to prevent future economic disaster by imposing new financial services regulations.

Congress Acted to Curb Corruption for a Reason

Congress long ago placed reasonable limits on corporate spending in order to preserve the importance of individual citizens’ votes and to curb corruption, and the appearance of corruption, in government. Congress struck back against the power of the trusts with the Tillman Act, and passed the Federal Election Campaign Act in the aftermath of the Watergate scandal. Then, after many other scandals in the years that followed, including the controversy surrounding overnight stays in the Lincoln Bedroom and exclusive White House coffees for big donors, it passed the BCRA. The Court’s decision, while it does leave the core of McCain-Feingold intact, in many ways takes us back to the era of the robber barons in the 19th century.

The Court Ignored Longstanding Legal Principles

In its ruling, the Court ignored several time-honored principles that have served for the past two centuries to preserve the public’s respect for and acceptance of its decisions. This decision runs contrary to the concept of “judicial restraint,” the idea that a court should decide a case on constitutional grounds only if absolutely necessary, and should rule as narrowly as possible. Here, the Court did just the opposite — it decided the constitutionality of all restrictions on corporate spending in connection with elections in an obscure case in which many far more narrow rulings were possible.

The Court also ignored stare decisis, the historic respect for precedent, which Chief Justice John Roberts termed “judicial modesty” during his 2005 confirmation hearing. It’s hard to imagine a bigger blow to stare decisis than to strike down laws in over 20 states and a federal law that has been the cornerstone of the nation’s campaign finance system for 100 years.

Finally, the Court ignored the longstanding practice of deciding a case only after lower courts have fully examined the facts. Here, because the broad constitutional questions raised in the recent reargument of the case were not raised in the court below, there is no factual record at all on which the Court could base its legal conclusions.

Just a little over six years ago in the McConnell opinion, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ The only thing that has changed since then is the composition of the Court. It is deeply disappointing that this Court, and particularly its newest members, had so little respect for precedent. This decision will surely undermine public confidence in the Court as well as damage our nation’s political system.

Russell Feingold is a United States Senator from Wisconsin.

 

 

 

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