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Campaign finance ruling deeply divides Washington interest and legal groups

by Susan Crabtree - 01/21/10 8:31 PM ET

The Supreme Court’s monumental decision to overturn decades of restrictions on corporate and union money in elections deeply divided Washington interest and legal groups Thursday as supporters hailed the decision as a victory for free speech and opponents predicted a cataclysmic upending of the democratic election process.

In the sweeping 5-4 decision, the court’s conservative bloc determined that corporations should have the same First Amendment rights as individuals, and thus corporations and unions should be free to spend unlimited amounts of money independently in elections.

{mosads}The ruling, however, did not lift limits on corporate and union contributions to candidates, a sore point with some lawmakers who worry about the expanded influence the decision provides special interests and outside groups over their reelections. The timing of the decision also rattled members of Congress because of its immediate impact on this year’s midterm elections.

Both sides predicted a massive increase in the amounts of money spent in political elections, especially in the final weeks and months before voters head to the polls.

“This case will lead to more spending in political elections and all of us here think that’s a good thing,” said Brad Smith, a Republican-appointed former commissioner at the Federal Election Commission who now heads the Center for Competitive Politics, a free-market campaign finance group.

Joe Sandler, another advocate of fewer campaign finance restrictions and former counsel to the Democratic National Committee in the 1990s, predicted the decision would lead to greater political freedom, but would not give either party an advantage because it applies to unions as well as corporations. The impact, he said, will be more political participation on both sides, although he concedes it will likely produce more negative advertising.

“You will see more sharp-edged, candidate-specific advertising closer to the election and that can make it more difficult for members to take tough votes in an election year,” he said.

Advocates of greater limitations on campaign finance law painted an equally bleak picture of the decision’s impact on the country’s campaigns and elections.

“This is a disaster for the American people and a very dark day for the courts,” said Fred Werthemier, the president of Democracy 21. “This is the most radical and destructive campaign finance decision in the history of the Supreme Court.”

The decision overturns a century of restrictions on using corporate treasury funds to purchase broadcast ads or billboards that urge the election or defeat of a federal candidate. That prohibition dates back to 1907 when President Theodore Roosevelt pushed for laws barring corporations, railroads and national banks from spending money in federal elections. Congress later extended the ban to include unions.

The Supreme Court struck down that law, determining that Congress doesn’t have the power to bar corporations from spending their own money on political ads, because the First Amendment does not make the distinction between corporations and individuals.

It upheld one significant portion of current rules — that sponsors of political ads must disclose the organization or corporation that paid for them. While they were gratified that the requirement remains law, Werthemier and his like-minded colleagues said identities of corporate donations could easily be hidden by giving to a trade association, such as the U.S. Chamber of Commerce.

The decision was supported by five justices who were all Republicans nominees, including Justices John Roberts, Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito Jr.

The dissenters included three Democratic appointees: Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. The trio joined Justice John Paul Stevens, who was appointed by Republican President Gerald Ford.

Speaking from the bench, Stevens called the decision “a radical change in the law … that dramatically enhances the role of corporations and unions — and the narrow interests they represent — in determining who will hold public office.”

Roberts countered that he did not want to “embrace an interpretation of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern.”

Those supporting limitations on campaign finance argue that the FEC has never been involved in banning books. During oral arguments, U.S. Solicitor General Elena Kagan said the FEC does not view its proper role as policing books and has never taken an enforcement action against a book.

Their opponents, however, point to complaints filed with the FEC against financier George Soros’s multimillion-dollar tour promoting a book highly critical of former President George W. Bush before the 2004 campaign. The FEC never took action in that case.

“I’m a political conservative; I don’t like George Soros,” said Hans von Spakovsky, a former Bush-appointed FEC commissioner. “That a government agency could be investigating someone because they write a political book is a violation of the most basic principles we have in this country.”

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Critics of the decision said the Supreme Court erred in equating corporations with living, breathing individuals and by doing so is amplifying corporate interests and minimizing the voice of average Americans.

“This is the Super Bowl of very, very bad decisions,” said Common Cause’s Bob Edgar. “We need to get the entire nation to realize that this decision will prevent them having a nation that is for the people, by the people.”