Friday, February 5, 2010

The Intrigue of Campaign Finance

A huge decision was made by the Supreme Court recently on the issue of Campaign Finance. The opinion basically states that banning campaign contributions for corporations is unconstitutional because that violates the first amendment (freedom of speech) and campaign contributions are a form of political speech. The case was Citizens United v. Federal Election Commission, No. 08-205 and was decided on a 5-4 vote. Justice Kennedy wrote the majority opinion and was joined by Chief Justice Roberts and Justices Thomas, Scalia, and Alito. Justice Stevens wrote the dissenting opinion and was joined by Justices Breyer, Ginsburg, and Sotomayor.

The other side to this argument is that corporate speech is not the same as individual speech. I don’t know about the strength of this argument because corporations are just made up of many people (the investors, the Board, etc.) and because of that they, generally, have more money than the individual. Should they not be allowed to practice their “free speech” and endorse whom they want because they have more money? The Supreme Court says not. And you may be thinking to yourself; how can they spend the money on campaigns? I don’t know all the logistics, but they have to get the shareholders approval for this because it is their money. So, that is a check on the CEO or the board so that they can’t spend money on campaigns without approval. Even if there isn’t an official “vote” before the money is spent, the shareholders can elect new board members and that is a huge power and check on this type of spending.

This case was so huge because it overturned two precedent cases (meaning these issues have already been ruled upon by the Court), which are Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission. Austin was a decision that basically said corporate restrictions on political spending, more specifically on the support or opposition of a candidate, are okay. McConnell v. Federal Election Commission was the case that upheld the Bipartisan Campaign Reform Act, generally known as the McCain-Feingold Act. McCain-Feingold “banned the broadcast, cable or satellite transmission of ‘electioneering communications’ paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.” When the Court overturns precedents it’s admitting that they were “wrong” on the previous issues. Because of “stare decisis”, which is, “the legal principle by which judges are obliged to obey the precedents established by prior decisions” (more:, the Court really only does this rarely (like in the case of Brown v. The Board of Education of Topeka, Kansas which overturned Plessy v. Ferguson).

The ramifications of this decision are wide-ranging. First of all, we must realize that there are things that may not seem “right” that are protected by the law and that is the problem I have with this case. I do believe there shouldn’t be censorship on free speech and concur with Justice Kennedy’s statement that “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.” But I also agree with something Sandra Day O’Connor said: “Of course I’m worried about it” — ‘it’ being the potential of so much more political spending by corporations — “because so much money has been going into judicial campaign races in recent years. It has the effect of turning judges into these politically elected figures. And [what] the framers of our constitution tried to achieve…was an independent federal judiciary.” Now, she is only talking about the effect on the judiciary, but if that branch was somehow “compromised” by political spending which therefore turns judges into politicians with agendas, then that is most definitely unconstitutional because the judiciary established in the Constitution is supposed to be “independent” from politics and the bullying of politicians. Politicians seem to have views on this issue also. For example, Obama took a swipe at the Court in his State of the Union address when he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.” This decision also affects elections of politicians generally; money is power. And because it seems like the person who puts the most money up wins the nomination for their party…well, that is also interfering with democracy. We, the people, are supposed to decide who our candidates are, not some elitist CEO or corporation with their own agendas. So how do we bridge the gap between free political speech and the hindering of our democratic processes? It looks like we haven’t figured that out yet.

Further reading:

  2. Interview with Sandra Day O'Connor
  4. Obama's State of the Union speech

No comments:

Post a Comment