Stephen Colbert explains the big campaign finance case before the Supreme Court
Kari Chisholm
Last week, the Supreme Court held a rare hearing outside of their usual October to April session. The case, Citizens United v. FEC, is a critical and urgent case - since it applies to campaign finance law (and needs deciding before the 2010 cycle gets too far down the road.) In short, the Court will be deciding whether to overturn the decades-old prohibition on direct corporate contributions to federal political campaigns.
It's a complex issue, which may be why there was a relative paucity of news coverage of the case last week.
Surprisingly, the single best summary of the history and the law came from Stephen Colbert on Tuesday night. Check it out.
Discuss.
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Sep 17, '09
Real campaign reform would include prohibitions against out-of-district donations and donations by minors.
Also strict regulations to make sure that donations from overseas actually came from US citizens.
8:32 a.m.
Sep 17, '09
The 1886 ruling that corporations have the rights of a persons has created great mischief. It is not in the Constitution. It needs to be changed. Corporations are entirely creations of law. They should have no fundamental rights.
That said, corporation are very useful and important in organizing business activity. Corporation are certainly useful in publishing books, newspapers and movies, and I would not want to inhibit free speech by individual people through restrictions on what corporation could support or do. In this case, it is not clear to me, for example, what distinguishes "Hillary" from any of Micheal Moore's movies. Both are "political," but one seems to come under campaign contribution laws.
Sep 17, '09
Corporations cannot cast a vote on Election day, and they should not be able to contribute either.
Same thing for unions. They should not be able to contribute.
The individuals within the corporation or union should be able to give as much of their own money as they wish.
But the officers of a corporation or union should not be able to funnel other peoples money to support the candidate of their individual choice.
9:49 a.m.
Sep 17, '09
It's important to remember that this case deals with independent expenditures, not direct contributions to candidates themselves. It's a distinction with difference, but not one that you will not pick up from Colbert's otherwise excellent piece.
The basic argument that corporatists make in defense of free speech rights for corporations is that these entities are comprised of people, and are expressions of the interests of individuals, and their free speech protections flow from the free speech protections of individuals.
I recently made the following argument in response to former FEC chair Brad Smith, who strongly favors extending full free speech rights to corporations. I think it's worth repeating here:
I suspect that this argument will not carry much weight with the majority of the Roberts court, which is basically going out of its way to reconsider this case on broad constitutional grounds.
To folks who believe that this won't have much of an impact on our elections, consider this: Currently, corporations extend their influence through the "bundling" of $2,400 contributions by their board members, executives, and shareholders. But the actual wealth of corporations in many times greater than the wealth possessed by these individuals. If the ability to limit independent expenditures by corporations fails, it is likely to dramatically increase the ability of corporations to influence political campaigns and public policy.
As a frame of reference for the kind of money we're talking about...
Exxon-Mobil controls assets worth about $240 billion whereas all labor unions operating in the United States have combined assets of about $12 - $13 billion.
Sep 17, '09
This will be a game-changing decision if the corporate position can get five votes (and it is surprising that this has not been discussed more widely in non-legal circles). It appears from the transcript of the oral argument that the corporate position may have those five votes. If you think corporations already have out-sized influence on American politics, you haven't seen anything yet. Without a substantial shift in the Court or a new amendment to the Constitution to address this, this could be a defining political issue for our era decided by a 5-4 decision (and a defining decision for the Roberts Court's reputation).
Sep 17, '09
Scott Shorr:
It appears from the transcript of the oral argument that the corporate position may have those five votes. If you think corporations already have out-sized influence on American politics, you haven't seen anything yet.
Bob T:
Could be. But don't try to name those five as they might be different from one issue to the next. After all, your view was correct regarding the Kelo case in which the powerful corporation class got the final word that it can get local government to sweep away old people and minorities from their well-kept homes (no "blight" to speak of) so they can get the building site they want, and those five votes at the time did NOT include Thomas, Scalia, Rehnquist or O'Connor, but were the five that the left-leaners counted on the most at the time.
Bob Tiernan Portland
10:43 a.m.
Sep 17, '09
Sal, it's my understanding that while the original case dealt with IEs, the Court may be prepared to rule directly on the prohibition against direct corporate contributions. In general, when the Supreme Court rules, they can make their ruling as broad as they want -- and in this case, they appear ready to do that. (Notwithstanding the excellent argument for deciding cases narrowly propounded by Chief Justice John Roberts in his confirmation hearings.)
As for Scott Shorr's comments, y'all should listen carefully. I believe he's the only person commenting on BlueOregon who has actually appeared before the Supreme Court in the last few years.
Sep 17, '09
Bob - I could be wrong whether there are 5 votes to hold that corporations have First Amendment rights to give unrestricted political donations, but I will treat you to a beer if those 5 do not turn out to be Roberts, Alito, Kennedy, Scalia and Thomas. Only Roberts and Alito appeared open to the issue, and after oral argument, not so much. Kennedy, who is often a swing vote, seems more solidly for the corporate position on this one.
ps- I happen to have problems with the Kelo decision too so perhaps that is one place where a progressive Democrat like me and a lot of Republicans can agree.
11:29 a.m.
Sep 17, '09
Kari - The broad ruling that Solicitor Kagan is trying to avoid is the elimination of restrictions on Independent Expenditures by overturning Austin and by undermining the component of McConnell v FEC that prohibits the airing of television or radio electioneering communications by corporations.
I'm fairly confident that no serious observer believes that the court will overturn the ban on direct contributions by corporations to candidates. The Colbert interview that followed "The Word" was rather misleading in that regard.
Sep 17, '09
As Sal suggests, this case is about political expenditures and not contributions. I should have said that there was a significant risk of a rule that would strike down the limits on corporate political "expenditures" and not "contributions" - although I don't see that the effect would be much different in the real world or much reason why that rule could not easily extend to political contributions if there is a sweeping ruling on the First Amendment rights of corporations, which I think is a risk with this Court.
As for the Solicitor General's arguments and attempts to keep the ruling narrow, they didn't appear well received by Roberts or Alito, who were her intended audience.
12:57 p.m.
Sep 17, '09
Scott - It would actually be better for the Supreme Court to lift the ban on direct contributions by corporations than for it to lift the ban in independent expenditures.
We have very well-established legal precedent and traditions that support the regulation of contributions to candidates, and the litmus test used by courts in allowing such regulations -- weighing free speech rights against corruption or the appearance of corruption is easier to meet when we are talking about a direct contribution to a candidate.
The courts have been much less willing to regulate political expenditures, which is why no state currently has limits on ballot measure campaigns, and part of the reason why Oregon's pre-1972 ban on political expenditures was reversed by the legislature in 1973.
Long story short: Allowing independent expenditures by corporations is much more likely to result in unlimited spending by corporations on candidate races than is allowing them to contribute directly to candidates.
Sep 17, '09
I really have no opinion other than that of treating Unions and Corporations in exactly the same manner when considering campaign financing. I believe that the arguments made here against Coporations being able to make contributions hold true for Unions as well.
Like corporations, they are made up of individuals, but are not an individual per se.
Sep 17, '09
The big problem, as some have mentioned, is that corporations and other legal entities are treated as people. There are many, many areas where that one principle results in overbalancing on behalf of corporate interests. It impedes law enforcement, it complicates regulations, and undermines civil liberties.
The idea that an organization of people can be treated as if it were a person is ridiculous, and one that would never stand up if it were put to a vote of the people. At some point, legislators should address this issue, but they never will, especially if the court overturns the law, because the money will be too much to overcome.
Sep 17, '09
Sal - I hear ya' and largely agree, but don't have much faith that a majority of this Court won't broadly expand corporation's 1st Amt rights on the expenditure front.
2:32 p.m.
Sep 17, '09
Scott - I hear ya. After going a few rounds with Brad Smith, I've got a pretty good idea just how extreme some of the views are on this court.
Kurt - Unions are treated exactly the same way as corporations under the current federal regulations. They can't make direct independent expenditures from their treasuries and they can't contribute directly from their treasuries to candidates.
Sep 17, '09
Thanks Sal, as long as both entities are treated the same I have no concerns. I also agree that there are big problems with the Kelso decision.
Sep 17, '09
Kurt Chapman wrote:
Like corporations, they are made up of individuals, but are not an individual per se.
PACs are organizations made up of individuals, and are source of a substantial portion of campaign money. There is a difference between extending the right of individuals to groups and allowing groups to give political money.
For me, it is not abstract definitions that matter, but whether or not elections give results that are democratic in nature or plutocratic in nature. I like democracy and believe that it is subverted when wealthy interests dominate political spending. In modern America, it is rich individuals and big corporations that have the assets to dominate politics.
Sep 18, '09
Scott Shorr:
Bob - I could be wrong whether there are 5 votes to hold that corporations have First Amendment rights to give unrestricted political donations
Bob T:
Well, I'm not trying to say that this won't be the case, but that you should be prepared to be surprised at many USSC rulings and how each justice votes. On this one, five seems more likely than four or six having that opinion.
Scott Shorr:
but I will treat you to a beer if those 5 do not turn out to be Roberts, Alito, Kennedy, Scalia and Thomas.
Bob T:
That might cost you a lot since my rule on beer is that I'll have one only if I'm in a pub in Ireland or Britain. But I'd have to say that the safe bet is that if there are five they'll be the very ones you've listed (possible joined by Breyer, if anyone else does). But I think their views are based more on their views on free speech than they do about wanting to side with corporations.
Personally, I'm not big on corporation definitions being any more than what someone wrote in a previous comment in this thread, i.e. legal protections for a business enterprises in terms of assets etc., but they are too often used as shields by the people who actually make decisions that we need punish people for (illegal dumping, etc) instead of fining a "company". In the case of contributions to political causes, lobbying, etc., since it's really people doing this then they have to be up front about it, even though owners of firms can simply cut themselves a nice bonus check and make the same contributions under their own names. But that's one small part of this big picture, and although I haven't followed all of the details of this one I do know that there are real problems that could arise from incrementally reaching a point where something like a Michael Moore film can be banned until after an election, or you can be told to remove your own hand-made lawn sign because it's for a candidate who already has far more signs around than his opponent.
(By the way, I guess the prevalent view here is that corporations can be considered people so they can pay taxes, but not people when it comes to contributions? Is that consistent?)
Scott Shorr:
Only Roberts and Alito appeared open to the issue, and after oral argument, not so much. Kennedy, who is often a swing vote, seems more solidly for the corporate position on this one.
Bob T:
I mentioned Breyer earlier -- wasn't he a corporate lawyer early on? That was one of the complaints about him. But I don't like him for other reasons, and Lincoln was a well-paid railroad attorney for a while yet we could use more like him at all times.
Scott Shorr:
ps- I happen to have problems with the Kelo decision too so perhaps that is one place where a progressive Democrat like me and a lot of Republicans can agree.
Bob T:
On that one, I wasn't surprised at how the minority side voted, and was hoping for one more (at least) from the other five but it was hard to predict, yet not surprising in the end. I'm actually disappointed that the minority opinion (which makes many excellent points regarding abuse of power against politically weak members of society) has not been quoted or praised by those who normally detest Scalia, Thomas etc. My advice is to treat all justices on a case by case basis.
By the way, you ought to read Scalia's opinion on the Kyollo case from our own Florence, Oregon (the one with the use of heat-sensing devices to conduct warrantless searches that the government insisted were not searches). Scalia takes the word "search" seriously and held the gov't to that standard. I'm sure many people predicted he'd be a sure vote for the kick-the-door-in law and order side, but when the opinion proved they were wrong they never said a thing about it. Too bad.
Bob Tiernan Portland (never lived in Lake Oswego)
Sep 18, '09
Suppose a corporation was convicted of criminal homicide. How would you execute it?