When I say “contempt of court” I’m referring to the reactionaries in the Supreme Court who have nothing but contempt for genuine democracy.
In its two-century long struggle against corporate power, the federal government made several attempts to crack down on the corrupting influence of corporate money in electoral politics. Starting as early as 1907, Congress passed a series of bills intending to prohibit corporations, banks particularly, from contributing money to federal campaigns. In 1910 and 1911, Congress passed bills that require disclosure on federal campaign contributions impacting elections in the House and the Senate. These bills were strengthened by Federal Corrupt Practices Act of 1925, which provided additional support for the previous disclosures bill. This was followed by the Hatch Act of 1939 and subsequent amendments in 1940, which were additional attempts to impose campaign contribution limitations. These were followed by Taft-Hartley Act in 1947 that sought to ban corporate and union campaign spending entirely. Yet none of these reforms had any real impact on limiting corporate spending in electoral politics because they did not contain provisions authorizing the enforcement of the legislation. Without some kind of central yet independent authority that could ban, fine or sue corporations for violations, the laws lacked teeth and corporate money continued to flow through lobbying organizations.
In the 1970s, the federal government tried to remedy this problem with additional attempts at campaign spending reform. In 1971, Congress passed the Federal Elections Campaign Act (FECA), which limited donations from organizations and placed limits on individual contributions. The legislation also allowed corporations to give money indirectly to campaigns through political action committees (PACs), though still subject to disclosure requirements as specified in the earlier legislation. PACs are organizations formed by special interests—corporations, unions, or other groups—that raise money and then make donations to political campaigns and pay for political advertisements. In 1974, Congress passed another bill amending FECA by creating an independent watchdog agency, the Federal Elections Commission (FEC), which was authorized to ensure compliance of campaign laws.
In 1974, FECA was challenged in the courts by two senators and political candidates. Republican Senator, James Buckley, and Democratic Senator, Eugene McCarthy, challenged the constitutionality of FECA and filed a suit with the Secretary of the Senate, Francis Valeo. The lawsuit eventually made its way to the U.S. Supreme Court and came to be known as the landmark, Buckley v. Valeo 1976 case. In Buckley the Supreme Court made a distinction between “contributions” and “expenditures.” Contributions were interpreted as direct donations to individual candidates whereas expenditures were interpreted as money spent on the candidate’s cause, namely advertising. The Court stated,
“It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups and candidates. The restrictions… limit political expression at the core of our electoral process and of the First Amendment freedoms… expenditure ceiling impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.”
In other words, the Supreme Court ruled in Buckley that special interest spending on political messages is protected as freedom of speech by the First Amendment of the Constitution and therefore cannot be subjected to any laws passed by the federal government to impose limitations. The scales of power tilted toward large corporations that have the capability of spending enormous amounts of money on a particular candidate or issue. The corporate lobbying machine gained tremendous momentum and pushed for a 1979 amendment to FECA that allows unlimited amounts of soft money—money spent indirectly on advertising and political messaging.
Immediately after the 1979 amendment to FECA was passed, then Republican Governor of California, Ronald Reagan, became President of the United States. The Republicans, with their strong ties to big business, constructed a formidable soft money/lobbying apparatus. From the 1980s forward the political landscape in Washington changed dramatically. Corporate lobbyists became more like Congressional staffers and government agencies that were created to regulate and enforce laws like the Securities Exchange Commission, Environmental Protection Agency, the Department of Agriculture, and the U.S. Treasury became clients of the corporations they were supposed to be regulating. The two hundred year old tradition of democratic push back began to fade and the Democratic Party shifted from the opposition party to the compromise party and then to the now capitulation party.
In 2002, Congress made one last attempt to push for campaign finance reform with the Bipartisan Campaign Reform Act, also commonly known as the McCain- Feingold. The name is misleading, however, because the Senate version that was sponsored by Senators John McCain, and Russell Feingold is not the version that was signed into law, rather it was the House version known as Shays-Meehan. Nonetheless, the name McCain-Feingold stuck. The legislation contained the so-called “electioneering communications” provision which banned corporations, either for profit or nonprofit, and labor unions from broadcasting soft political messages within 30 to 60 days of primary or general election. Electioneering communications are soft and considered not direct endorsements, yet are defined in the legislation as, “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
Most of these key provisions the McCain-Feingold were struck down in subsequent Supreme Court rulings between 2007 and 2010. In 2007, the Court ruled that the bill’s ban on political messaging between 30 to 60 days before an election is unconstitutional as a violation of the First Amendment. In 2008, the Court also ruled that placing limits on campaign contribution based on the amount that an individual spends from their own wealth is discriminatory and unconstitutional. In January of 2010, however, the Supreme Court made its most significant ruling to turn back the clocks on campaign finance reform in the case of Citizens United v. Federal Election Commission.
The case originated with a dispute between a conservative nonprofit organization, Citizens United, and the FEC. Citizens United produced a documentary titled, Hilary: The Movie, which was overtly created to undermine Hilary Clinton’s credibility as a presidential candidate. The film was released in 2008 while Clinton was running a campaign for the U.S. presidency in primary election. The film was slated to air on television, but was then scuttled when the FEC charged that Citizens United use of the film was a violation the “electioneering communications” provision in McCain-Feingold. The case was brought before the U.S. District Court of Washington, D.C. where the court ruled in favor of the FEC.
The Citizens United case eventually made its way to the U.S. Supreme Court. In a five-to-four decision the court reversed the District Court’s decision. The five majority justices are corporate friendly conservatives who waved the banner of free speech and argued that the ban on electioneering communications is in violation of the First Amendment to the Constitution. On behalf of the conservative majority in the court, Justice Kennedy commented that “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in free political speech.” Kennedy went on to say, “Expenditure is political speech presented to the electorate… [and] disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.”
The dissenting justices were stridently opposed to this view. Justice Bader Ginsberg declared that, “A corporation, after all, is not endowed by its creator with inalienable rights.” Justice Stevens drew a parallel between selling votes and selling access to the electorate’s opinions, “The difference between selling a vote and selling access is a matter of degree, not kind… And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” In other words, spending on electioneering communications is a form of corruption. Stevens also warned that the decision not only threatened American democracy, but the very credibility of the Supreme Court itself.
Frustration with the court’s decision was also expressed in the other branches of the federal government and in the media. Republican Senator, John McCain, from Arizona and co-sponsor of the McCain-Feingold bill, asserted that he was troubled by the by the “extreme naïveté” of some of the justices. In a state of the union address, President Obama called the ruling “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” The New York Times reported that the court’s decision was a “sharp doctrinal shift” and in an editorial the Times warned that, “…the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.” These statements seem to imply that up to now corporate influence in politics was somehow of minor importance or under control.
There has been no major shift in Washington’s structure of power as a result of the Supreme Court’s ruling in the Citizens United. The importance of this ruling is that it has confirmed and cemented the already dominant role that corporations, their lobbyists, and their business associations play in electoral politics. Indeed, the midterm election that followed in 2010 was the most “moneyed” in American history. When the court’s decision was made public, President Obama noted, “The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.” The Supreme Court has given the green light to what is, by any other name, corporate bribery and extortion, and with this ruling the court has made the problem of corruption in politics infinitely more intractable. If we assume that the justices are aware of the implications of their rulings, and there is no reason why we would not, then their decision can only be interpreted as one of contempt for real democracy.The Supreme Court did not, however, change the limitations individuals can spend on campaigns. The Federal Election Commission continues to enforce limitations on the amount individuals and organizations may spend directly to candidates or committees: ranging between $2,000 and $5,000 to each candidate or candidate committee per election. However, large corporations and organizations have found ways around this rule by soliciting campaign funds from their employees, friends, or family members and then bundling them together as a package. For example, four Wall Street giants bundled together over nearly three million dollars for the 2008 election even though the companies themselves did not directly contribute any money. Goldman Sachs pulled together close to $994,000, Citigroup bundled $701,290, J.P. Morgan Chase, $695, 132, and Morgan Stanley, $514, 881.
These large corporations can also influence the political process by spending large amounts of money to maintain a well-equipped militia of lobbyists. According to the First Amendment to the U.S. Constitution, citizens have a right to petition the government or redress grievances regarding new or pending legislation. Lobbyists, usually lawyers or consultants, are paid to exercise these rights of behalf of special interests, and the wealthiest and most powerful special interests are large corporations. Senators and Representatives often rely on lobbyists for their expertise and information as they prepare to vote on legislation even though the information is heavily biased. The more money businesses have to spend on lobbying, the more political influence they have to determine the specific provisions in legislation.
According to the Center for Responsive Politics data, the biggest spenders on lobbying in Washington are in the health and banking or finance industries. The business associations of health care providers, pharmaceutical companies, and insurance providers topped the list with $263.3 million in lobbying expenditures in 2009. Coming in second place was the financial sector with $222.7 million, followed by energy sector with $212.9 million, and communications/electronics with $181.5 million. With these enormous amounts of money to spending buying influence in the nation’s capitol, it should not come as a surprise then that they have a heavy hand in determining the outcome of legislative efforts.
2012 is most cash-corrupted election year in the history of the Milky Way. Already $6 billion has been spent largely on nauseating attack ads and ridiculous dog and pony road shows on campaign trails. That amount could pay for roughly half of Oregon’s state budget for a year. Since the Supreme Court ruled that this kind of corruption is somehow constitutional, there is little that can be done with legislation short amending the U.S. Constitution banning anything but publicly funded campaigns. If that’s what we have to do, then that’s what we should be doing. After all, we’ve done it before—27 times.