Citizens United v. FEC will be heard by the Supreme Court in September. This may be the Court’s opportunity to roll back campaign finance restrictions that infringe on the First Amendment.
Citizens United, a conservative non-profit corporation, sought to air a documentary critical of then-presidential candidate Hillary Clinton via video-on-demand. McCain-Feingold, the 2002 campaign finance law, banned broadcast “electioneering communications” that merely mention federal candidates in the period before national conventions, primaries, and general elections, when those broadcast communications are made by an incorporated entity or funded by corporation or union money.
Alower court ruled thatCitizens United could not distribute the movie by video-on-demand because the group is incorporated and the activity would occur during the law’s blackout period.The Supreme Court, however, appears ready to overrule either a 1990 ruling that permitted the complete prohibition of independent corporate speech expressly advocating the election or defeat of a candidate (Austin v. Michigan Chamber of Commerce), or the portion of the 2003 decision upholding most of McCain-Feingold, including the “electioneering communications” prohibition, McConnell v. FEC — or both.
Self-styled reform leaders are wildly hyperbolic in decrying the influence of money in politics. Take this Chicken Little scenario from Democracy21 President Fred Wertheimer about the consequences of overruling Austin: “Banks like Citigroup, investments firms like Merrill Lynch, insurance companies like AIG, and corporations like General Motors and Chrysler would be free to spend hundreds of millions of dollars of their corporate wealth to directly support the election of federal officeholders who did their legislative bidding.”
In 2002, the last election cycle before McCain-Feingold (during which corporate soft money contributions to political partieswere allowed), only six corporations in the entire country made more than $3 million in soft money donations — so did five labor unions, according to data provided by the Center for Responsive Politics. Not exactly the “hundreds of millions of dollars” Wertheimer frets over.
“Reformers,” alsobemoan the demolition of a “century-old statute.” In fact, the Tillman Act of 1907, held up by campaign finance reformers as the sacred law banning corporate contributions, is — as one would expect of a 100-year-old law — outdated and out of step with modern politics and technology.
It was passed at a time when corporations were new and uncommon. Today, nearly every corner barber shop and non-profit organization is incorporated.
The Tillman Act’ssponsor was Sen. “Pitchfork” Benjamin Tillman (D-SC), a notorious racist and proponent of Jim Crow laws. He pushed the corporate contribution ban as a way to kneecap corporations opposed to his agenda because they did not want the added expense of providing separate accommodations for different races or restrictions on hiring black workers.
Campaign finance regulations are often about politicians or interests limiting dissent, silencing critics, and protecting their power — not promoting reform or curbing corruption.
Overruling Austin would not allow corporations and unions to contribute directly to candidates — although over 20 states allow such contributions and appear to be as well-governed as any others. Rather, it would merely guarantee that corporations and unions could speak directly to voters about candidates and issues.
The views of employees, labor union members, or members of groups like state chambers of commerce are vital to a robust debate on issues and candidates. Adding their voices to the mix cannot corrupt our democracy. It would enrich it.
The first few words of the First Amendment, “Congress shall make no law” are clear: The First Amendment is an absolute protection of speech by everyone — not something that can be amended to suit the agendas of those in power. Hopefully, the Supreme Court holds true to this principle and follows through in overturning both Austin and McConnell after it rehears arguments in Citizens United this fall.
Bradley A. Smith, a former FEC Chairman, is the Chairman of the Center for Competitive Politics.
