Earlier this month, the U.S. Supreme Court ruled in Citizens United v. FEC that corporations and unions have a constitutional right to spend millions of dollars in independent ad campaigns that attack or support particular candidates. The decision also removes restrictions that barred issue ads from being broadcast close to the date of an election.
The 5-4 verdict overruled two precedents: Austin v. Michigan Chamber of Commerce in 1990, which upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. FEC in 2003, which upheld the part of the McCain-Feingold campaign finance reform law that restricted campaign spending by corporations and unions.
The howling reaction by Democrats and good-government groups was the angriest response to a Supreme Court decision since Kelo v. City of New London in 2005. (That ruling said that local governments may force property owners to sell out and make way for private economic development when officials decide it would benefit the public.)
Deirdre Macnab is president of the Florida League of Women Voters. She called the ruling a huge step back for voters and for those thinking of running for office. "This decision will vastly increase the amount of special interest money in politics, making it confusing for voters and more expensive for candidates," said Macnab. "It is also a loss for shareholders, as companies can use their profits to change political contests."
Florida already allows corporations and unions direct involvement in state and local elections.
Former Tampa Congressman Jim Davis knows all about big money in political campaigns, as he raised and spent more than $23 million in his losing effort against Charlie Crist for governor back in 2006. He says the true impact of the Citizens United case is hard to assess at this time. But on the face of it, he doesn't think the ruling is good for democracy.
"I think there have to be restrictions," the Democrat says. "I think it's a matter of proportions. This money system encourages bad behavior with people who have a lot of money."
Other critics called the decision an example of what conservatives have bashed the courts for in the past — judicial activism. Only this time it was liberals calling out the Supremes on that charge.
Chris Griffin is a Tampa-based attorney and Democratic party activist. He said it was extremely unusual for the high court to override itself. "There's a lot of excellent writing in Justice [John Paul] Stevens' dissent on the decision by prior courts to focus on the real and potential corrosive effect of money on campaigns, and because corporations were different than individuals, it was appropriate to regulate them as such," he said. "My point is that these approaches were made already."
But even though many people feel the ruling would help Republicans because of the ability of their friends in big businesses to support them in federal races, Democrats might benefit in some races based on limits now being removed for organized labor.
According to the Web site OpenSecrets.org, in 2007 and 2008, unions spent over $74 million to influence elections (92 percent of which went to Democrats). Though that does seem formidable, business interests spent over $1.9 billion in that time period (where the split was 56 percent for Democrats, 44 percent for Republicans).
And it should be noted that not all civil libertarians are bemoaning the decision. Celebrated First Amendment attorney Floyd Abrams, who represented GOP Kentucky Senator Mitch McConnell in an amicus filing in the case, called the ruling "a sweeping decision that made it very clear that the First Amendment protects corporate speech about politics and government."
And Salon.com's Glenn Greenwald wrote that he was "unpersuaded" that Republicans will have a huge advantage in future elections. "If anything," Greenwald wrote, "unlimited corporate money will be far more likely to strengthen incumbents than either of the two parties."
At the end of last week there was talk that Congressional Democrats might try to craft legislation to alleviate concerns about the ruling. Whether such a bill would pass constitutional muster was another question. Then again, depending on how long it takes to get such a legal challenge through the courts, the Supreme Court's composition might be different by the time it gets another whack at the case, and there might be a 5-4 ruling the other way.
This article appears in Feb 3-9, 2010.