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'Judicial Activism' on Campaign Finance Law
By Ruth Marcus

WASHINGTON -- Alabama Sen. Jeff Sessions, the top Republican on the Judiciary Committee, said last week that he would vote against confirming Sonia Sotomayor to the Supreme Court because he doubts she will "resist the siren call of judicial activism."

If that's what he's worried about, there are some sitting justices whom Sessions might want to lash to the mast -- quickly. Except these justices tend to be in Sessions' ideological camp.

Next month, even before the traditional first Monday in October opening and almost certainly with Sotomayor on the bench, the court will hear a campaign finance case that illustrates the activist itch among its conservatives.

Rehear it, actually. In a surprise move on the last day of the term, the court announced that it would hold a new argument in the case -- and that it would consider overruling two precedents upholding limits on corporate money in the political process.

Talk about judicial activism.

One case, from 1990, Austin v. Michigan Chamber of Commerce, held that corporations could be barred from spending their own funds -- as opposed to using a political action committee to which employees contribute -- to urge a candidate's election or defeat.

The second, part of the 2003 decision upholding the McCain-Feingold campaign finance law, said that the prohibition on corporate spending could be extended to "electioneering communications" -- advertising that mentions a candidate shortly before an election even if it doesn't explicitly support or oppose that person.

Three justices -- Antonin Scalia, Anthony Kennedy and Clarence Thomas -- have called for Austin to be overturned. Chief Justice John Roberts and Justice Samuel Alito, no fans of campaign finance regulations, seem tempted to go along.

Overruling Austin would be a disaster, and curtailing McCain-Feingold only slightly less so. The floodgates would be opened for corporations, and labor unions, to run ads supporting or attacking candidates -- not only in federal campaigns, but in the 22 states that now prohibit such spending. The only restriction would be that they couldn't give to candidates directly.

Imagine the 2010 election in a post-Austin world, with drug companies going after members of Congress who vote against their interests, or banks targeting lawmakers who backed tighter regulation. It's not as if these industries lack political power now, but consider what kind of legislation would result if lawmakers had to fear that an industry they defied could spend an unlimited amount to defeat them at the next election.

The pending dispute is a hard case, but it doesn't require the justices to make bad law.

It involves "Hillary: The Movie," produced by a conservative group, Citizens United, during the 2008 presidential election campaign. Citizens United wanted to pay a cable channel to make the movie available as a video on demand. It went to court, seeking an order that it be permitted to do so.

The film, as Justice Stephen Breyer aptly put it during the first oral argument, "is not a musical comedy." It portrays Clinton as a "congenital liar" with a "tendency to manipulate, deceive and destroy for personal gain," while it emphasizes the stakes in the forthcoming election.

In short, this is precisely the sort of cantankerous political speech that ought to be protected under the First Amendment. The problem is that for purposes of federal election law, nonprofit Citizens United is treated the same as Wal-Mart because it takes corporate as well as individual donations.

We don't want Wal-Mart -- at least I don't -- using its purchasing power to buy elections, and we don't want Wal-Mart funneling money to a nonprofit proxy. But how to keep Wal-Mart out of the candidate-electing business while protecting the speech of ideological groups?

The justices, understandably, seemed nervous about this puzzle, especially when the government's lawyer, during oral arguments in the case, said the government would also be acting constitutionally if it prohibited corporate funding of a similarly anti-Hillary book.

The smart, not to mention judicially restrained, approach would be for the court to take one of several available escape hatches, much as it did in avoiding a final verdict on the constitutionality of the Voting Rights Act. It could say that because Citizens United took such a small amount of corporate money, it should not be subjected to the same rules as a regular for-profit corporation. (This is already true for ideological nonprofit groups that don't take any corporate funds.) It could say an on-demand video is not the same as a commercial.

As it happens, the first case on which soon-to-be-justice (the vote is this week) Sotomayor will sit comes in an area in which she has some expertise: Sotomayor served on the New York City Campaign Finance Board. She wrote in a 1996 law review article: "Can elected officials say with any credibility that they are carrying out the mandate of a 'democratic' society, representing only the general public good, when private money plays such a large role in their campaigns?"

Maybe her conservative colleagues, before lunging to overrule precedents, could take some counsel from a wise Latina.

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Annapurna1 said:

first of all..i should point out that the outcome of the case discussed below is a forgone conclusion..the gang of five already have their minds made up...

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second of all..allowing wal-mart to buy out an election is too much even for a conservative columnist like ruth marcus to stomach...

third of all..given the virtual certainty of a corporate victory in this case..wal-mart &co will just as surely purchase a radical right-wing govt in 2010 and 2012...pushing aside imaginary differences between democraps and repugnicans.. it is no longer too bold to venture that the latter will hold at least a 2/3 majority in both chambers of congress come 2011.. with the balance being blue dogs...

and fourth of all..because the SCOTUS will likely rule that any restrictions on corporate campaign spending are strictly constitutionally protected..it will be impossible for the congress to legislate around the decision..short of a constitutional amendment...

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Maybe her conservative colleagues, before lunging to overrule precedents, could take some counsel from a wise Latina.

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luvdemshrooms said:

I guess we'll find out should one ever make it to the Supreme Court. For now we only have a moronic, racist hack.

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zappaisgod said:

The concept that corporations are owned by human beings is a bridge too far for most of the lefty fringe, which would just as soon stifle all speech not approved by the Heroic People's Worker Collective.

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Corporations are made up of human stockholders, all of whom are guaranteed to petition the government.

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Redstorm said:

They are spending their own money. By owning a portion of a company, any revenue spent on lobbying is money which is not returned to shareholder wealth.

Not to mention that my utilizing economies of scale, s single voice for all stockholders of a company is more efficient and effective than each voicing separately.

To recognize these things, however, you would have to use reason and rationality, which doesn't seem to be a big skill of the screeching loons who want to restrict free speech.

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Smackshadow said:

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Corporations are made up of human stockholders, all of whom are guaranteed to petition the government.

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Good, then we will let those stockholders spend money lobbying government.  As for the corporations, maybe they shouldn't be waisting the stockholders money.

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Smackshadow said:

Interesting . . . if government says your corporation can't spend money on political advertising than that is a violation of free speech. 

If the controlling interest of a corporation takes assets which belong to you and spend them on a cause that you may or may not agree with and certainly not with your express permission, than that is free speech in action.

As for utilizing economies of scale some, myself included, would say that is the problem.  Maybe you see no problem with an industry with immense wealth seeking to alter elections buy using the accumulated wealth of others, but I do. 

Think of it this way we don't let people in foreign lands contribute to U.S. political committees, because we are afraid that such contributions from foreign people may corrupt our system. 

Since corporations are independent entities divided from the owners then as an independent entities I have no problem saying they cannot donate to campaigns either.  Neither foreigners or corporations are citizens of the U.S. and as such none of them can vote in an election.  If they can't even vote why are you so quick to say they should be allowed such a persuasive voice in our political system?  It just does not seem like a good idea to me to allow those with the greatest of special interest (which often manifest themselves to the determent of consumers, workers, the environment, exc.) and who have the resources to fund lobbyists and campaign contributions such an enormous role.

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Sombie said:

Sure, because the republican party has been a shining example of free speech in this world

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Once again you try to frame the debate into a "left vs right" argument when really it has nothing to do with either.

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If you don't think campaign contributions from corporations influence politicians into voting ways that do not represent their constituent's best interest then tell me what the point of corporate campaign contributions are.

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zappaisgod said:

I believe that if any of those organizations engage in campaigning they lose tax exempt status.  But they cannot be silenced.

As an aside just for you:
You're going down, Champ.  This week.

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zappaisgod said:

Since when does the Republican Party represent the right?

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Not exactly.  Although I did note that it is the lefty loons which supports this impediment to free speech it is also true that the idiot John McCain helped write the legislation being assaulted.  For an FYI, also opposing this free speech stricture....AFL-CIO.

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The point of campaign contributions is to help get people who you support and who you believe will enact the policies you prefer elected.  Is there something wrong with that?  Just how intolerant of disagreement are you?
The owners of corporations are constituents not nameless faceless drones.  Did you know that it is perfectly legal for you to contribute to the campaign of someone in Idaho even though you don't live there?

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See, my mistake, here I am thinking that you are supposed to get what you want by voting. Now I know, in order to have a democratic say in this country, all you need is a multi-million dollar corporation in order to bribe the politicians in power! How stupid of me!


Corporations were ruled legally humans by the Supreme Court, of course they did this over a hundred years ago when corporations didn't have nearly the power they have now, the intent was to isolate the corporation to itself, so people could invest without risking personal assets.

This is a good thing, it has been one major factor (along with the industrial revolution) in the great explosion of wealth and innovation over the past century. But it also has its down side.

We are supposed to be a country of one person, one vote. When we don't like what a politician is doing we can vote them out of office. That is how a democratic-republic is supposed to work. Right now (and it'll be worse if this court case goes as expected) lobbyist just fund everyone (On both sides of the isle) so their interest are protected. So we have no recourse, it is nearly impossible to vote someone in who has not received campaign contributions of some kind in any important election. If it was, as you say "to help elect the people they think believe in" then tell me why the usually contribute to opposing candidates in elections?

Its not being intolerant of disagreement, its wanting this country to be run THE WAY IT WAS MEANT TO BE RUN. By the voters, by the American people, not a very select few of extremely rich individuals pulling the strings behind a curtain.

Thats not democracy thats a mix of fascism and despotism.

Sombie said:

zappaisgod said:

Since when does the Republican Party represent the right?

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My mistake, I thought you hated the healthcare, supported wars, and were for corporate interest?

The Republican party doesn't represent the right, but it does represent you.

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Not exactly.  Although I did note that it is the lefty loons which supports this impediment to free speech it is also true that the idiot John McCain helped write the legislation being assaulted.  For an FYI, also opposing this free speech stricture....AFL-CIO.

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So, again, is left versus right to you.

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The point of campaign contributions is to help get people who you support and who you believe will enact the policies you prefer elected.  Is there something wrong with that?  Just how intolerant of disagreement are you?
The owners of corporations are constituents not nameless faceless drones.  Did you know that it is perfectly legal for you to contribute to the campaign of someone in Idaho even though you don't live there?

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See, my mistake, here I am thinking that you are supposed to get what you want by voting. Now I know, in order to have a democratic say in this country, all you need is a multi-million dollar corporation in order to bribe the politicians in power! How stupid of me!

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Says who?  Not the Founding Fathers who had a very different view about who should get to vote.  Every person, including through any collective group they should choose to be involved in, should have the right to have their say before any and all elected representatives and to support any and all candidates they wish to.
Did you know it is punishable by prison to buy a vote?  The only issue here is free speech, not vote buying.

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Wow, I can't believe I met someone as dumb as you.

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You're a fucking pinata.

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fact that you have a far more closed and simplistic puppet mind than I do?

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Not only are you a leftist, you're a fascist, too.

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Unlike foolish 12 year olds. . .

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Sombie said:

Wow, I can't believe I met someone as dumb as you.

although, I suppose its not your fault, to busy drinking the GOP kool-aid to see whats going on around you.

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First you said they contributions were to elect the politician they believe in, now its to cover their bases. So what one is it?

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Again, what do they plan to gain with these contributions besides votes in the senate and house?

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If both politicians take contributions then how are we, as the voting public, supposed to vote for someone with our interests in mind?

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Says who?  Not the Founding Fathers who had a very different view about who should get to vote.  Every person, including through any collective group they should choose to be involved in, should have the right to have their say before any and all elected representatives and to support any and all candidates they wish to.
Did you know it is punishable by prison to buy a vote?  The only issue here is free speech, not vote buying.

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Wow, someone completely does not understand how a democracy works huh?

If you buy a politician you buy their votes in office, that is obvious. If everyone has their votes bought, then we have no recourse to change it.

"Vote buying" refers to citizen voting at the booth, not politician voting in Congress.

If people can buy politicians, how are we still a democracy? Tell me.

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zappaisgod said:Wow, someone doesn't know how America works or that it isn't a democracy.  Who knew that in this day and age someone could find an adult who didn't know we were a representative republic?  Who knew that in this day and age somebody didn't know that the vote as originally envisioned was only for white men?

All you can give to politicians is campaign funds which they can only use for campaign expenses.  There are some creative types but their prosecutable malfeasance is no excuse for silencing millions of people (would you accept that kind of "prior restraint" in any other area?) and cutting off funds for hundreds of other politicians. 

I asked this before and you completely ignore it, no doubt because you know it is fatal to your argument.  If you restrict who can give contributions where do you stop?  Why do stockholders have fewer rights?  If you forbid all campaign contributions (and that really is the only alternative to a "some people are more equal than others" argument) you will only have Bloombergs and Corzines in office.  Is that what you want?  Only millionaires with tons of their own money able to run for office.

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Sombie said:

We do too have the same interest, you do live here in America, right? Ultimately I want a strong America, a good economy, a government that is not corrupt and as much freedom as possible. I assume you want the same? Where we differ is how to get there.


Of course I know we are a DEMOCRATIC REPUBLIC. That is obvious to anyone, but it is still a democracy, or a type of it at least. Its not a direct democracy, but a representative government, voted on by a democratic election. So "democracy" while not technically valid is often used to describe our system. But I am not telling you anything you don't know, so lets move past that.

Lets be honest, multi-billion dollar corporations are not in it for the good of the country, they are in it to make a buck, as they should be, that is their function. However when campaign contributions were originally thought of, it was assumed that it would be individuals providing funding to candidates that they believed in. NOT corporations looking for connections and influence in the government.

Politicians are beholden to the people who put them into office. When they get hundreds of thousands of dollars from corporations to finance their campaign they ultimately owe more to them then to the voting public. Your point about Obama winning because he outspent McCain only helps my point, that because spending is more important then stances you are left with a politician who is more worried about keeping those campaign contributions going then what the American people actually think.

Think about it, if you were a senator and a vote was coming up that would influence a corporation that paid you hundreds of thousands of dollars, would that not effect your vote?

Its a bribe, pure and simple.

Our elected officials should be beholden to us, the American voter, and not to special interests of large corporations.

As I said before this is not a republican or a democrat issue, both sides take money and both sides let it influence their vote.

As for what we do about it, I am not really sure, I don't have all the solutions. Taking away regulation is not the way to go. Hopefully a solution that allows individuals donate to campaigns without allowing corporations to use that as a way to do it themselves presents itself. Otherwise publicly funded campaigns or something might be the way to go, but its tough because then a lot of people get excluded, then again, its pretty hard to be poor and running for POTUS anyway, so I don't know.

Maybe making all the politicians wear company logos on their sleeves so we instantly know where they stand?



I don't know, I think the only true solution is to let the states figure it out first, let each of them be their own experiment and then pick what system works best for our national election.

Otherwise we will continue to be left with politicians (again, on both sides) who are more beholden to campaign contributions then the voters.

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That picture gave me wood.  Finally a job he isn't qualified for but won't do too much damage in.

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Don't let candidates donate their contributions to other candidates.  Make the penalties for misappropriation of campaign funds draconian.  Like three fingers draconian.  I'm sure I could come up with other things.  But telling people they can't contribute because there are too many of them or they have too much money is ludicrous and anti-Democratic.

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"This I hope will be the age of experiments in government, and that their basis will be founded in principles of honesty, not of mere force."
--Thomas Jefferson, 1796

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Redstorm said:

They are spending their own money. By owning a portion of a company, any revenue spent on lobbying is money which is not returned to shareholder wealth.

Not to mention that my utilizing economies of scale, s single voice for all stockholders of a company is more efficient and effective than each voicing separately.

To recognize these things, however, you would have to use reason and rationality, which doesn't seem to be a big skill of the screeching loons who want to restrict free speech.

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Sombie said:

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That picture gave me wood.  Finally a job he isn't qualified for but won't do too much damage in.

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You sure about that? Those cars are driving in excess of 200 mph, that can be pretty dangerous, and there are a lot of other people on that track and in the stands.

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