Last Term, the Supreme Court took the unusual step of leaving a case on its docket undecided. Rather than answer the narrow question presented in Citizens United v. FEC – whether a 90 minute film attacking former presidential candidate Hillary Rodham Clinton is subject to campaign finance laws — the justices instead ordered the parties to brief whether longstanding restrictions on corporate money in politics should be declared unconstitutional. Today, the Court reheard Citizens United in a rare September sitting.
Early reports suggest that, true to form, the Court’s five conservatives are now poised to open the floodgates to unlimited corporate money in U.S. politics. Justices Scalia, Kennedy and Thomas are already on record claiming that campaign finance reform violates the Constitution; and while Chief Justice Roberts and Justice Alito have not previously weighed in on this specific question, both of the Court’s newest conservatives towed predictably pro-corporate lines at today’s argument. Although it’s likely that the Court will not completely eliminate all campaign regulation, the system that they leave in place will probably do little to keep United Health and AETNA, for example, from spending billions to defeat supporters of health reform in 2010 and 2012.
Presently, campaign finance law draws a distinction between “independent” campaign expenditures — such as money which funds attack ads that aren’t authorized by or coordinated with a campaign — and direct donations to a candidate. Significantly, in its order asking the parties to rebrief Citizens United, the Court asked whether Austin v. Michigan Chamber of Commerce, a case upholding bans on “independent” corporate expenditures, should be overruled, but it did not mention the century-old ban on direct campaign donations by corporations. Accordingly, it is most likely that the Court will overrule Austin but leave the longstanding ban on direct contributions in place.
The intellectual framework for this distinction rests on a frankly naive understanding of independent contributions as incapable of influencing politicians’ actions. Historically, campaign finance regulation has been justified under the First Amendment because of the government’s compelling need to prevent either the reality or the appearance that politicians’ votes are driven solely by which interests are willing to write them the biggest check. Conservatives have long maintained that independent contributions do not raise the specter of bribery, however, because the donor never actually interacts with the candidate or the campaign. Apparently, in Justice Kennedy’s America, George W. Bush was incapable of figuring out who funded Swift Boat Veterans for Truth.
Moreover, preventing bribery is only one small part of an effective campaign finance scheme. In 2005, for example, a Bush DOJ political appointee saved the tobacco industry $120 billion by secretly altering a court document to reduce the award the federal government was seeking in a lawsuit, but there is no indication that the industry bribed anyone to get the document altered. Rather, Bush Administration officials sincerely believed that corporations should not be accountable for their actions, and their governed with these values in mind. In 2010, and 2012, it should be easy for the tobacco industry to find similarly-minded candidates to throw their massive treasuries behind.
Ultimately, these massive treasuries are the problem with the Roberts Court’s likely decision in Citizens United. Unlike actual human beings, corporations can exist forever and amass hundreds of billions of dollars in the process. With such awesome resources at their hands, the record-breaking $745 million President Obama raised in his election campaign becomes quaint. Indeed, if the Court opens the flood-gates on independent corporate campaign expenditures, actual spending by campaigns (and small donations by ordinary Americans) could become irrelevant, drowned out by a sea of corporate cash.