Red and green lights flashing
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A Supreme Court ruling allows political campaigns to be bankrolled by “special interest money” prompting fears of unaccountability and an erosion of democracy as big spenders hold the power.
A green light
Two years ago, a critical documentary called Hillary: The Movie aired in eight cinemas. Almost no one paid attention in early 2008, when Citizens United, a conservative non-profit group, challenged a ban on the film and its promotional ads as a violation of free speech. But the minor case worked its way up to the Supreme Court, which ruled five-to-four this January that restrictions on federal campaign spending contravene constitutional rights.
Prior law had limited election spending from corporations, unions and non-profit groups to funds raised via political action committees, rather than from their general treasuries. Last month’s holding, which may open doors to largesse from big oil, financial services and health insurance industries, overruled important judicial precedents from 1990 and 2003, and a landmark 2002 McCain Feingold election spending statute. Ironically, John McCain’s campaign rival, Barack Obama is equally unhappy, describing the new decision as a “green light to a new stampede of special interest money”. (article continues below)
A red light
A little red light beams from the top of the nation’s capital, as a warning to aeroplanes overhead. “These days the light has taken on a new meaning, as that building becomes the ultimate brothel in our country,” says Lynn Turner, formerly chief accountant at the Securities & Exchange Commission. As money funnels into special interests, he warns that congressmen will take it and become beholden. As a result, both Republican and Democrat recipients will find it even harder to reach across the aisle to compromise, having already committed to deep-pocketed donors.
”The light has taken on a new meaning, as that building becomes the ultimate brothel in our country”
“Meanwhile, shareholders of big oil, Wall Street firms or other sponsors, have little recourse. Sure, they can sell, but the money will already have been spent; most own equities through funds in any case; besides, selling may penalise them with tax consequences. “A corporation’s best interests may not be well aligned with the views of its CEO,” points out James Cox, a law professor at Duke University.
Cox is hopeful that Congress may tighten disclosure rules. “We can’t limit the spending, but at least we can try to shame through transparency.” Disclosure requirements still provide a bulwark, having been upheld by all eight justices except Clarence Thomas. The rules stipulate that ads must carry disclaimers attributing responsibility for the content. Justice Kennedy, the swing voter, has said that those disclaimer rules are constitutional, but only as long as they do not lead to harassment. Watch out for another thin wedge for chipping away at protections against influence.
Critics, including President Obama, have been quick to note that the new paradigm appears to allow donations from subsidiaries of foreign corporations–an awkward contrast to a stark prohibition on foreign contributions to American candidates. While xenophobic fears may prove alarmist, Senator Patrick Leahy has pointed out that merely 2% of Exxon Mobil’s $45 billion (£29 billion) profits in 2008, “could have outspent both presidential candidates” that year.
Justice loosens the blindfold
In general, conservatives and business interests have supported the ruling, while liberals warn of inflationary election spending, increased attack ads, and diminished influence from smaller spenders, like internet contributors. “In constitutional law, the normative vision and value conflict is often clear,” explains Neil Siegel, professor of law and political science at Duke. For Republicans, government is the problem, for liberals and democrats it is the solution. “But academics have trouble documenting the effects,” Siegel adds.
Supreme Court decisions can have long-reaching effects. To alter a ruling like this one would first require a change in the ideological composition of the court, unlikely to occur for a decade or more. Among today’s justices, the five younger conservative ones were appointed by Ronald Reagan or the two Bush presidents, so it will take a change of at least two judges to sway the partisan balance. As the court evolves, “they would still need to find another free speech case with a fact pattern to appeal for a rehearing”, Turner says.
It is a sad reality that the Supreme Court becomes ever more politicised, especially since the 2006 retirement of Justice Sandra Day O’Connor, a moderate conservative widely respected for her even-handed approach. Are blatant ideologues as dangerous as those who labour beneath red lights? Neither makes for good government.
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