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Democracy, Inc.
Determining the ‘winners’ in the Supreme Court case of Citizens United v. FEC is not as simple as right v. left
By Bryan Warner
Published: Jan. 26, 2010
RALEIGH - By releasing its long-anticipated decision in Citizens United v. FEC on Jan. 21, the U.S. Supreme Court sent shock waves throughout the political world, overturning a century of restrictions against corporate spending in American elections.
In a 5-4 ruling, the court opened the door for corporations to pour unlimited amounts of cash directly from their treasuries into the political process in hopes of shaping everything from school boards and state courts to Congress and the Oval Office.
No longer will corporations be confined to spending through political action committees. Now, any corporation can dip directly into its funds to pay for as many political ads as it can afford -- ads that can directly attack or support the candidate of its choosing.
Reactions to the decision paralleled the court’s split -- conservatives generally praised the ruling as protecting First Amendment rights for corporations, while progressives decried it as opening the floodgates to a deluge of corporate cash in elections.
The deciding factor in the case was Justice Anthony Kennedy, who has emerged as the Supreme Court’s coveted “swing vote” after the retirement of fellow Reagan-appointee Justice Sandra Day O’Conner in 2006.
The notion that Kennedy serves as a bridge between the more conservative and liberal justices may be overstated. Research by SCOTUSBlog.com shows that Kennedy sided with Justices Antonin Scalia and Clarence Thomas -- viewed as the high court’s most conservative justices -- in 80 percent of the cases decided by the court in 2009. However, a key case in which Kennedy did join with the more liberal justices as the fifth and pivotal vote offers some irony when contrasted with the ruling in Citizens United v. FEC.
In the 2005 case of Kelo v. City of New London, the Supreme Court ruled 5-4 that privately owned property could be seized by the government and given to other private entities that might provide increased tax revenue. Conservatives on the bench and across the nation expressed their revulsion at the ruling, which they said would allow governments to confiscate private property and pass it along to the highest bidder.
In a dissent joined by Scalia, Thomas and Chief Justice William Rehnquist, O’Conner wrote: “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
The same conclusion might very well be applied to last week’s decision in Citizens United v. FEC.
While the Citizens United ruling kept in tact the prohibition against corporations giving directly to a candidate’s coffers, corporations are now unfettered in launching shadow campaigns. Being less concerned than the candidates themselves about alienating voters through negativity, corporate campaigns could very well take a nasty turn.
The euphoria felt by conservatives in the wake of the court’s decision could turn to trepidation when considering that the Pandora’s box opened by the court might not only allow unlimited spending by corporations, but potentially labor unions with a healthy checkbook to match their fervent push to elect liberal candidates.
Also of potential concern to conservatives is the possibility of foreign corporations flooding targeted U.S. races with euros, yen and rupees. While the court's decision made clear that American-owned corporations would be free to spend their treasury funds in the nation's elections, left undetermined was if their foreign-owned counterparts enjoyed the same leeway.
In his dissent, Justice John Paul Stevens wrote that the ruling "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans."
During an interview on ABC News’ “This Week,” Republican Sen. Jim DeMint of South Carolina praised the Citizens United decision. Yet when moderator Terry Moran noted that foreign corporations might now be able to spend unlimited sums to shape the outcome of American elections, DeMint demurred, saying, “I hope, as this thing is sorted out, that we'll make sure that this is an American focus.”
But as fellow guest, Democrat Sen. Bob Menendez of New Jersey, countered, “The problem is, a corporation is a corporation is a corporation. And a foreign corporation is going to be able to spend their monies in determining who is elected to the United States Congress.”
In addition to the prospect of foreign cash in U.S. elections, conservatives might temper their praise for the ruling if Republican strategist Matt Dowd is correct in his assessment that the decision amounts to “incumbency protection.”
“Corporations and most large entities will side, as they usually do, with the incumbent, because that's where they think their bread is buttered,” Dowd said on “This Week.”
Despite the frenzy surrounding the recent Republican achievement of becoming a simple minority -- as opposed to a “super minority” -- in the U.S. Senate, Democrats still run Washington, and, if Dowd is right, stand to gain from unchecked corporate campaign spending.
Like most Supreme Court decisions, even as the Citizens United case answered for now the question of limitations on corporate spending in political races, it raises many others. Can foreign-owned corporations be barred from spending to influence U.S. elections? And what of shareholders who see their corporations spend profits to support candidates whom they as individuals oppose?
What seems clear is that corporate cash will be more important than ever before in American politics.
One sensible response would be public campaign financing. The presidential financing program is in tatters after years of neglect, but with some concerted effort by Congress could be revitalized for the 21st century. Already a bill is winding its way through the labyrinthine legislative process that would establish public financing for congressional races. And aside from federal contests, North Carolina is a leader among several states that have implemented public campaign financing for some of their respective races.
Another key tool remaining to keep corporate spending in check -- or at least held accountable -- is the court-sustained provision requiring campaign spending reports from corporate entities.
However, such transparency requirements are only as good as their enforcement, making independent watchdog groups and journalists all the more important in shining light on campaign spending. In this brave new world of corporate-sponsored elections, a vigilant and informed public is vital to protect against the bankrupting of American democracy.