Pro & Con: Is the Supreme Court’s ruling on campaigns bad for democracy?

By Fred Wertheimer

The Supreme Court decision in the Citizens United case is a disaster for the American people and a dark day for the Supreme Court.

The decision will unleash unprecedented amounts of corporate “influence-seeking” money on our elections and create unprecedented opportunities for corporate “influence-buying” corruption.

The decision is the most radical and destructive campaign finance decision in Supreme Court history. In order to reach the decision, five justices abandoned long-standing judicial principles, judicial precedents and judicial restraint.

In a stark choice between the right of American citizens to a government free from “influence-buying” corruption and the economic and political interests of American corporations, five Supreme Court justices came down in favor of American corporations.

With a stroke of the pen, five justices wiped out a century of American history devoted to preventing corporate corruption of our democracy.

The radical nature of the decision can be seen in the fact that the court is overruling cases decided in 1990, 2003 and 2007, without any changed circumstances to justify these abrupt reversals.

The only change that has occurred is a change in the makeup of the court itself and that provides no justification for overturning past decisions.

The Supreme Court majority has acted recklessly to free up corporations to use their immense, aggregate corporate wealth to flood federal elections and buy government influence. The Fortune 100 companies alone had combined revenues of $13 trillion and profits of $605 billion during the last election cycle.

Under the decision, insurance companies, banks, drug companies, energy companies and the like will be free to each spend $5 million, $10 million or more of corporate funds to elect or defeat a federal candidate — and thereby to buy influence over the candidate’s positions on issues of economic importance to the companies.

The decision turns back the clock to the 19th century, eliminating a national policy to prevent the use of corporate wealth to corrupt government decisions — a policy that has existed for more than a century.

Members of Congress have passed and presidents have signed numerous laws over the years to prevent “influence-buying” corruption of our government. These laws have consistently been upheld by the Supreme Court.

In the name of the Constitution, five justices have substituted their pro-corporate policy views for the anti-corruption policy views of the representatives elected by citizens to establish our national policies under our constitutional system of government.

This decision will have a devastating impact on the ability of citizens to believe that their government is acting on their behalf, instead of advancing the interests of the nation’s corporations at their expense.

In the coming weeks, Congress should explore all possible legislative options to address the dangerous corruption problems opened up by the Supreme Court.

The Citizens United decision reinforces the need to dramatically increase the role of citizens in financing our elections with small “non-influence-seeking” contributions.

This requires enacting legislation to repair the presidential public financing system and create a new system of congressional public financing, and to make small donors the key players in these systems by providing public funds to match small contributions.

Justice Louis Brandeis once said, “The most important political office is that of the private citizen.” The Supreme Court decision rejects Brandeis’ view, raising corporations to new heights of influence in our political system.

Fred Wertheimer is president of the nonprofit Democracy 21.

No: Free speech, no matter the speaker, is what our Constitution protects.

By Mitch McConnell and Floyd Abrams

The decision of the U.S. Supreme Court holding unconstitutional sections of federal laws barring corporations and unions from spending their money to express their views about public issues and candidates seems certain to be one of the court’s most controversial free speech rulings ever. Supreme Court justices who voted for it have been publicly berated for joining an opinion that concluded that “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” We believe the ruling to be a First Amendment triumph.

Debate about the constitutionality of portions of the Bipartisan Campaign Reform Act (BCRA) has cut across usual ideological lines. It is difficult to think of another topic that has led groups as diverse as the ACLU and the NRA, the AFL-CIO and the U.S. Chamber of Commerce to urge the court to deem a law unconstitutional.

The case involved a scathing documentary denouncing then-Sen. Hillary Clinton produced by Citizens United, a conservative group funded by individual and corporate grants. Produced during the 2008 primary, it is easy to understand how speech regulators in the Federal Election Commission and now the Supreme Court itself could conclude that the film was a not very concealed plea to vote against Sen. Clinton.

What is far harder to understand, however, is how speech of that sort, dealing with the qualifications of a leading candidate for the presidency, could possibly be unprotected by the First Amendment. But because some of the money the organization received came from corporations, because the film was to be shown on video-on-demand late in the primary campaign when it might have had the most impact on the election and because the film was understood by the federal regulators to be so focused on Sen. Clinton’s supposedly negative qualities that its unmistakable message was to vote against her, the federal authorities viewed it as criminal.

But criticism of candidates running for office, like criticism of politicians in office, has always been viewed as what the First Amendment protects most obviously and most importantly. Why should that not be true of speech of corporations? Or unions? Whether criticism — or praise — of political leaders comes from individuals, associations, corporations or unions, it is still a valuable part of the democratic process. If the law were otherwise, if corporations of all sorts were subject to congressional oversight as to their content, the free speech of all would be imperiled.

Citizens United’s orientation is sharply to the right. On the left, BCRA required advertisements for Michael Moore’s anti-Bush documentary “Fahrenheit 9/11” to be pulled off the airwaves as the Republican Convention of 2004 approached. And as the national election approached that year, the ACLU was required to avoid mentioning President Bush in advertisements it was publishing denouncing the Patriot Act.

Given the court’s ruling, corporations and unions will now be free to participate in the political process to a greater degree than had previously been possible. The suppression of speech by both not-for-profit and for-profit corporations is over, and short of a constitutional amendment Congress may not reimpose the current speech ban or anything like it.

Twenty-six states already allow corporations to spend their funds on state elections and there has been no discernible impact on those elections. Justice Anthony Kennedy put it well in concluding that “under our law and our tradition it seems stranger than fiction for our government to make political speech a crime.”

Sen. Mitch McConnell (R-Ky.) (left) is the Senate GOP leader. Floyd Abrams, a partner in Cahill Gordon & Reindel LLP, represented him in the Citizens case.

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