Assessing the Court’s campaign finance ruling on Montana
Have the Corporate Floodgates Really Opened?
The Citizens United v. Federal Election Commission decision overturns court precedent on corporate spending in politics, and potentially makes bans on such spending in states throughout the country, unconstitutional. In Montana, that ban has stood in place for nearly a century and its future now appears uncertain.
By Flathead Beacon, 2-04-10
Among the more memorable moments from President Barack Obama’s first State of the Union address was his direct criticism of a Supreme Court decision the previous week relaxing restrictions on political spending by corporations and unions. Rebuking Supreme Court justices for a decision face-to-face is a highly unusual move for a president, but Obama’s reaction underscores just how polarizing and momentous the ruling has the potential to be.
The Citizens United v. Federal Election Commission decision overturns court precedent on corporate spending in politics, and potentially makes bans on such spending in states throughout the country, unconstitutional. In Montana, that ban has stood in place for nearly a century and its future now appears uncertain.
Supporters of the decision, praising the conservative majority, saw it as a victory that protects free speech rights under the First Amendment. Critics of the ruling, broadly comprised of those on the left, lamented how it confers upon corporations rights given to people, and predicted it would only worsen the problem of special interest money in American politics.
Montana Secretary of State Linda McCulloch, a Democrat, said the decision could, “create a cattle call for corruption and pollute our election process by threatening decent, long-held campaign finance laws in Montana.” Montana Attorney General Steve Bullock, a Democrat who filed a brief with 23 other states asking the court to uphold the restrictions in place on political spending, said the decision was “disappointing.”
But as the dust begins to settle following the Citizens United decision, its implications for political spending aren’t as easily categorized as bad for the left, and good for the right. In Montana, where a relatively small amount of money can have a big impact on an election, the results can be more difficult to discern. And that’s what many interests throughout the state, from businesses to unions to political observers, are currently trying to figure out.
“There are a lot of people scratching their heads,” said Edwin Bender, executive director of the National Institute on Money in State Politics, the Helena-based organization that runs the Web site, followthemoney.org. “The balance (of political spending) is in favor of non-individual donors: Companies give a lot of money.”
“This is simply another way for them to do what they’re already doing,” Bender added. “Because costs are so low in Montana, whether they even need to do it is a question.”
What the Citizens United decision changed is where corporations, trade organizations, unions and nonprofits were previously prohibited from funding independent expenditure campaigns directly out of their profits or treasuries, they can now do so in unlimited amounts. While these corporations and groups are still limited in how much they can directly give to candidates, they are now free to spend as much as they wish to advocate for the candidates and causes they support – and against those candidates and causes they oppose. (Unions and corporations can still form Political Action Committees to give directly to candidates.)
But Bender believes corporations and unions already make good use of their free speech rights, and in a state as small as Montana, should some corporate entity dump a million dollars into a particular race, it could even reflect poorly on the candidate or cause and become political fodder, since such spending must still be publicly disclosed. Given the streak of angry populism currently running through American politics, that type of spending could prove counterproductive.
“Political consultants will be looking at independent expenditures in a different way,” he said. “As will all things political, there’s an upside and there’s going to be a downside.”
James Lopach, chair of the political science department at the University of Montana, also believes corporations may be reluctant to wade more heavily into electoral politics in the Big Sky State.
“In Montana, where there are very few large corporations,” Lopach said, “a corporation would be hesitant to be out front in political ads.”
Like Bender, Lopach thinks it likely corporations and unions will still spend on politics through the means available before the court’s decision.
“They will continue to participate through their own PACs or trade associations,” he added.
Lopach praised the court decision overall as “an important statement of the centrality of political speech in the First Amendment and that we should be very hesitant to limit it.” But he noted that the ruling does make Montana’s ban unconstitutional, and said it’s only a matter of time before the law is either challenged in court, or Bullock simply opts not to enforce it.
As for where that challenge to Montana’s ban might come from, Webb Brown, president of the Montana Chamber of Commerce, isn’t sure, but believes it’s imminent.
“It seems to us like it’s pretty clear that the Montana statute is on shaky ground,” Brown said. “I can’t imagine that it would not be challenged at some point in the next few months.”
The Chamber’s board hasn’t yet decided if it will take legal action against Montana’s ban or an individual business will do so, Brown said, adding that such a challenge would almost certainly happen by the November elections. But he also believes reaction to the court’s decision has been overblown, and that its impact, particularly in Montana where there are few large corporations, may be more limited than anticipated given the public outcry following the ruling.
“I don’t think the screams of agony we hear are appropriately placed,” Brown said. “I just don’t agree with that alarm, that hue and cry that we’ve heard from some on the left.”
Though Brown’s reaction contrasts rather sharply with the executive secretary of the Montana AFL-CIO.
“This is a bad, bad, bad decision,” Jim McGarvey said. “This will hurt everybody, especially small business and ultimately unions.”
While the broad perception is that the court decision frees unions and corporations to spend as they please on politics, McGarvey said, prior court decisions have limited how unions can spend membership dues, particularly with respect to political giving, leaving unions at a deep disadvantage to corporations that may now spend from their treasuries.
“This is just going to compound and help special interests,” he added. “Unions might be perceived to be special interests, but we’re interested in people being able to have sustainable jobs.”
The result of the decision, McGarvey said, will be a shift in influence toward corporations, taking Montana one step back to the early 1900s, when copper king William Clark bribed the state Legislature to gain a U.S. Senate seat.
“W.A. Clark might have been able to buy into the Senate but all the unions stacked on top of each other couldn’t do that and wouldn’t do that,” he added. “This opens up the floodgates.”
This piece originally appeared on www.FlatheadBeacon.com.
[End of article]I keep hearing the defenders of the Supreme Court's recent decision on this saying that it, "protects free speech rights under the First Amendment." How in the world does it do this? How can making it easier for corporate interests to buy elections be a protection of First Amendment rights?
Comment By Dave Skinner, 2-04-10I'm laughing at the high dudgeon from the Left on political money. While I'm not sure about corporate "free speech" as a concept, I don't understand why it's okay for SEIU to endorse and support a candidate while it's not okay for, say, an employer of SEIU workers to endorse or support an alternative.
Furthermore, while there are a lot of morons in America, many more folks are able to put corporate "free speech" in its proper context of motive. And, if the argument is salient and honest (just imagine if THAT happened), what's wrong with that? Really?
The real issue, which Congress probably will not address, is that of transparency. If I see advertisements, I really, really would like access to the names of who PAID for the dang thing, who REALLY paid for it. Then you can figure out WHY the ad was bought, and that's often more important than the "message."
The Bill of Rights was meant to protect individuals from more powerful forces like the government, and corporations. The decision by the malicious retards in the activist conservative majority are actually attempting to accomplish the opposite of the original intent of the Bill of Rights.
Comment By Dave Skinner, 2-04-10Wow, Mick, I agree with you about the Bill of Rights, but you really can be all over the map at times.
Do you trust Big Journalism to protect you from Big Everything Else or fully inform you of all the plans the Bigs have for your life? So then why would you muzzle anyone and let the press filter the debate for the final 60 days?
The issues here are simple. The Bill of Rights was enacted to protect the free speech and other rights of PEOPLE - natural human American citizens - NOT corporations. Certain old legal precedents have held that corporations are people and money is speech. Both claims are obviously false and contrary to the intentions of the Founders. Corporations cannot vote. Their interests are not those of people - only profit. They never die, so they can accumulate wealth and power indefinitely, and this ruling only allows that inequity to compound infinitely more quickly. Defending this ruling as "a victory for free speech" is nothing but corporate spin, already in action. It's not a victory for free speech because corporations are not people and furthermore, money is not speech! Restricting corporate expenditures in political campaigns, therefore, must not be misconstrued as a restriction on anyone's free speech. The CEO of a corporation would still have as much right I, or any other natural human American citizen, to speak and support candidates and issues. Corporations should not have such rights. If you argue they should, ask yourself: should they be able, then, to vote, or run for office? How many votes do they get? Who sits in their chair in the Senate - the CEO or some appointed lawyer? These are the absurd implications of arguing that Corporations should have the same rights as people.
Another thing: what this means for Montana alone is irrelevant. We all should be most gravely concerned for democracy in America as a whole. It is time for citizens' initiatives, public awareness campaigns, and mass support for upholding states' rights to continue to restrict campaign financing by corporations. It is time to define, in a constitutional amendment, once and for all, who the Constitution was written to protect: "We, the People," not They, the Corporations.
The decision gave more freedom to both corporations and unions to run ads within 60 days of an election. As Bill points out, newspapers (corporations) have not been prevented from trying to influence elections in this time frame. Between 1989 - 2009, there was but one corporation listed in the top ten of political contributors...AT&T;and it was millions behind the NEA, SEIU, Trial Lawyers, National Assoc of Realtors...
Comment By Matt Hisel, 2-04-10jwscotch, please cite your source for that last statistic. It's a fascinating thing, because certainly corporations have the potential to contribute far more than unions, and we often hear that they do. The subject warrants thorough investigation. I'd like to start with your source.
Comment By Floyd Kauffman, 2-04-10I just recently read the US Constitution again. I encourage everyone to do that periodically. To grant corporations the same free speech rights as individuals is an affront to the constitution. Our founding fathers repeatedly warned about allowing banks and corporations too much power.
So corporations now have citizenship rights? Can we put them into prison or put them to death? Are they allowed to vote? Of course not, they are not people and were never given the rights or responsibilities of people under the constitution.
If unions have the right to protect their interests, corporations should be afforded the same. Corporations interests "are not those of the people." How about that little thing called jobs? "Corporations are only motivated by profit." So employees must only be motivated to break-even? Corporations "never die" so "they continue to accumulate wealth and power." Was this a line from "Avatar" or "Saving Private Studebaker"? Oh, what are the rights of unhuman Americans? Zoo's or Congress?
Comment By B Johnson, 2-04-10I think the telling point in the article is “They will continue to participate through their own PACs or trade associations,” he added."
This means that Corporation can now spend unlimited amounts of money through front organizations and hide their name. I agree union et.al. can do the same thing but they must raise the money from members (people) and cannot raid the corporate coffers to buy elections.
No one has explained why corporation are people yet have their own laws like bankruptcy and can borrow money while bankrupt or the officers pay fines (actually the share holders) yet real people go to jail.
Corporations are protected by the Bill of Rights because they are the same as individuals. Money and Speech are the same thing. These Supreme Court Justices are actually mentally retarded.
Comment By Bob Averill, 2-04-10I think the ruling puts on even keel corporations like the Sierra Club , Natural Resource Defense Council, with Dupont, Con Agra, Exxon and whatever union. No entity is above another in equality.
Comment By Smithhammer, 2-04-10By saying its acceptable because unions do it, or because special interest groups do it, I think misses the entire point. We should be banning campaign contributions by ANY entity, period (and have strict limits on personal contributions). Regardless of the their "good" or "bad" intentions. Only then can we start to have an honest, clean system.
Comment By jwscotch, 2-05-10Bob, you're correct...evens the playing field.
Matt, my source, last weeks "Time," pg 14.