Highlights of Campaign Finance History – Part 2

by Kellye

After the Supreme Court overturned several of the major campaign finance reforms that had been put into place by the Federal Election Campaign Act (FECA) and its amendments (see Part 1), another attempt was made to reform campaign finance in 2002.  This time Senator John McCain and Senator Russ Feingold worked together to amend FECA once again with the passage of the Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold. The two main issues that were addressed were the contributions of soft money to political parties and the proliferation of political ads that were disguised as issue advocacy ads.

Citizens United Ruling Part 2

by Barb and Kellye

This is the second part of a series of posts outlining the 7 major questions considered by the Supreme Court in making its Citizens United decision (Part 1). This post deals with two of those major questions. One question involves whether the political speech rights of corporations should be curbed, and the other involves the rights of shareholders when there is disfavored corporate political speech. (Be sure to read to the end of the post; there is a link to an action that each of us can take to help minimize the effect of the Citizens United decision).

Do corporations have the right to unlimited political speech?

Citizens United Introduction

The Supreme Court’s ruling in  Citizens United v. Federal Election Commission (2010) has been credited with damaging our democracy due to its treatment of corporations as “persons” with the same rights, including free speech, of individuals. The case originally addressed “electioneering communications,” defined by the 2002 Bipartisan Campaign Reform Act (BCRA or McCain-Feingold) as broadcast ads that clearly identify a federal candidate, are targeted to the candidate’s electorate and are broadcast within 30 days of a primary or 60 days of a general election. The non-profit group Citizens United had planned to offer (through video on demand) a political documentary, Hillary: The Movie (with similar motives to the political documentary about Obama, 2016), less than 30 days before the 2008 primaries. Because of BCRA, the federal government stopped them, and the case went to court.

In 2009, the case ended up in the U.S. Supreme Court. The Citizens United group wanted a decision on a narrow question: did the BCRA’s rules on electioneering communications apply to their situation?

John McCain Calls Citizens United Decision the Worst Ever

John McCain with Naval Academy midshipmen

by Kellye

Republican Senator John McCain recently called the Citizens United decision the “worst decision ever.”  This isn’t the first time that he has spoken out against the decision.  In a PBS interview in June of this year, McCain called it “the most misguided, naive, uninformed, egregious decision of the United States Supreme Court in the 21st century.”  He continued, “To somehow view money as not having an effect on elections, a corrupting effect on elections, flies in the face of reality.”

In reference to the five Supreme Court justices who voted in favor of the decision, McCain added, “I just wish one of them had run for county sheriff.”  He said that “we need a level playing field and we need to go back to the realization that Teddy Roosevelt had: that we have to have a limit on the flow of money and that corporations are not people.”  McCain is predicting huge scandals in future elections due to the influence of unlimited money in the political process.

Citizens United on the Corporate Court

Jamie Raskin, a constitutional law professor, recently wrote a very interesting article on the Citizens United decision. The irony of the Citizens United case is that the plaintiffs only wanted a ruling stating that the electioneering provisions of the McCain-Feingold campaign finance reform law didn’t apply to them. “But the conservatives sent the parties back to brief and argue the paradigm-shifting constitutional question they were so keen to decide. As dissenting Justice John Paul Stevens observed, the justices in the majority ‘changed the case to give themselves an opportunity to change the law.'”

Raskin states that the influx of money spent by super PACs and dark money 501(c)4 groups in the 2010 election changed the focus of that year’s election from the continuing effects of the subprime mortgage crisis, the BP oil spill, and the Massey Energy coal mine disaster to the urgent importance of deregulating corporations (and, of course, repealing Obamacare). He discusses how, after 200 years of precedent, the Supreme Court changed its views of corporations from an “artificial entity” and “mere creation of the law” to one of personhood.

image courtesy of reuters

Raskin describes how corporations are now actually more protected than individuals and small businesses. Defenders say that “corporations should be free to keep their political spending secret because they may face intimidation and even — God forbid — boycotts from consumers who dislike their politics.” Small businesses are at a disadvantage since they don’t have the kind of money to spend that large corporations do in order to have their voices heard.

In another ruling against democratic principles, the Supreme Court overturned a provision of Arizona’s law on public campaign financing, a law that was passed by referendum by its citizens.  “The Court ruled that privately financed candidates backed by wealthy interests not only have a right to spend to the heavens to win office but also a right, in states with public financing laws, to lock in their massive financial advantage over publicly financed candidates, whose campaign speech may not be even modestly amplified by public funding when they get outspent. The First Amendment becomes not the guardian of democratic discussion but the guarantee of unequal protection for well-born and wealth-backed politicians. Today corporations can saturate the airwaves and billionaires can spend to their hearts’ content, but government cannot create even a modest megaphone to help poorer candidates be heard.”

Here are excerpts from the article: