Campaign spending is now a free for all

I’m putting this all here before it goes behind a firewall.

I’m pretty disheartened and speechless.
I’m almost as stupified as when Bush won. Both times.

Read the Supreme Court ruling here.

From the NYT:

Justices Block Key Part of Campaign Law

Published: January 21, 2010

Filed at 12:26 p.m. ET

WASHINGTON (AP) — The Supreme Court threw out a 63-year-old law designed to restrain the influence of big business and unions on elections Thursday, ruling that corporations may spend as freely as they like to support or oppose candidates for president and Congress. The decision could drastically alter who gives and gets hundreds of millions of dollars in this year’s crucial midterm elections.

By a 5-4 vote, the court overturned two of its own decisions as well as the decades-old law that said companies and labor unions can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision threatens similar limits imposed by 24 states.

It leaves in place a prohibition on direct contributions to candidates from corporations and unions.

Critics of the stricter limits have argued that they amount to an unconstitutional restraint of free speech, and the court majority agreed.

”The censorship we now confront is vast in its reach,” Justice Anthony Kennedy said in his majority opinion, joined by his four more conservative colleagues.

Strongly disagreeing, Justice John Paul Stevens said in his dissent, ”The court’s ruling threatens to undermine the integrity of elected institutions around the nation.”

Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined Stevens’ dissent, parts of which he read aloud in the courtroom.

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

Advocates of strong campaign finance regulations have predicted that a court ruling against the limits would lead to a flood of corporate and union money in federal campaigns as early as this year’s congressional elections.

”It’s the Super Bowl of bad decisions,” said Common Cause president Bob Edgar, a former congressman from Pennsylvania.

The opinion goes to the heart of laws dating back to the Gilded Age when Congress passed the Tillman Act in 1907 banning corporations from donating money directly to federal candidates. Though that prohibition still stands, the same can’t be said for much of the century-long effort that followed to separate politics from corporate money.

The decision’s most immediate effect is to permit corporate and union-sponsored political ads to run right up to the moment of an election, and to allow them to call for the election or defeat of a candidate. In presidential elections and in highly contested congressional contests, that could mean a dramatic increase in television advertising competing for time and public attention.

In the long term, corporations, their industry associations and labor unions are free to tap their treasuries to assist candidates, although the spending may not be coordinated with the candidates.

”It’s going to be the Wild Wild West,” said Ben Ginsberg, a Republican attorney who has represented several GOP presidential campaigns. ”If corporations and unions can give unlimited amounts … it means that the public debate is significantly changed with a lot more voices and it means that the loudest voices are going to be corporations and unions.”

Sen. Mitch McConnell of Kentucky, the Senate Republican leader who filed the first lawsuit challenging the McCain-Feingold law, praised the court for ”restoring the First Amendment rights” of corporations and unions. ”By previously denying this right, the government was picking winners and losers,” McConnell said.

The case does not affect political action committees, which mushroomed after post-Watergate laws set the first limits on contributions by individuals to candidates. Corporations, unions and others may create PACs to contribute directly to candidates, but they must be funded with voluntary contributions from employees, members and other individuals, not by corporate or union treasuries.

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas joined Kennedy to form the majority in the main part of the case.

Roberts, in a separate opinion, said that upholding the limits would have restrained ”the vibrant public discourse that is at the foundation of our democracy.”

Kennedy, who dissented from the rulings the court overturned Thursday, said, ”No sufficient government interest justifies limits on the political speech of nonprofit or for-profit corporations.”

Stevens, in a 90-page opinion that dwarfed Kennedy’s, complained that the court majority overreached by throwing out earlier Supreme Court decisions that had not been at issue when this case first came to the court.

”Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law,” Stevens said.

The case began when a conservative group, Citizens United, made a 90-minute movie that was very critical of Hillary Rodham Clinton as she sought the Democratic presidential nomination. Citizens United wanted to air ads for the anti-Clinton movie and distribute it through video-on-demand services on local cable systems during the 2008 Democratic primary campaign.

But federal courts said the movie looked and sounded like a long campaign ad, and therefore should be regulated like one.

The movie was advertised on the Internet, sold on DVD and shown in a few theaters. Campaign regulations do not apply to DVDs, theaters or the Internet.

The court first heard arguments in March, then asked for another round of arguments about whether corporations and unions should be treated differently from individuals when it comes to campaign spending.

The justices convened in a special argument session in September, Sotomayor’s first. The conservative justices gave every indication then that they were prepared to take the steps they did on Thursday.

The justices, with only Thomas in dissent, did uphold McCain-Feingold requirements that anyone spending money on political ads must disclose the names of contributors. The justices filed five separate opinions totaling 176 pages.


Associated Press writers Jesse J. Holland and Jim Kuhnhenn contributed to this report.

From the WaPo:

Supreme Court rejects limits on corporate spending in electoral campaigns

The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns.

By Robert Barnes and Dan Eggen
Washington Post Staff Writers
Thursday, January 21, 2010; 1:40 PM

A divided Supreme Court on Thursday swept away decades of legislative efforts to restrict the role of corporations in election campaigns, ruling that severe restrictions on corporate spending are inconsistent with the First Amendment’s protection of political speech.

The court split 5 to 4 over the ruling, with its conservative members in the majority.

“When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” the court said in a decision written by Justice Anthony M. Kennedy. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

President Obama sharply criticized the decision, saying it gives “a green light to a new stampede of special interest money in our politics” and represents “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.”

In a statement released by the White House, Obama said the ruling “gives the special interests and their lobbyists even more power in Washington — while undermining the influence of average Americans who make small contributions to support their preferred candidates.” He said he was instructing his administration “to get to work immediately with Congress on this issue” and coordinate with Democratic and Republican leaders on a “forceful response.”

The decision upends the court’s precedent that corporations may not use their profits to support or oppose candidates, and it rejects a large portion of the so-called McCain-Feingold campaign finance reform act that the justices had declared constitutional just six years ago. It seems likely to apply to the political role of labor unions as well.

The decision does not address the restriction on direct contributions to candidates, and it upholds disclosure requirements for groups that mount advertising campaigns for and against candidates.

The far-reaching ruling marks a triumph for groups that have fought the McCain-Feingold provisions, formally known as the Bipartisan Campaign Finance Reform Act of 2002.

It also is a telling reminder of how quickly a court can change. Justice Sandra Day O’Connor supported the constitutionality of the act in 2003. But Chief Justice John G. Roberts Jr. and O’Connor’s replacement, Justice Samuel A. Alito Jr., have supported each challenge to the law since they have joined the court. They supported Kennedy’s opinion, along with Justices Antonin Scalia and Clarence Thomas.

The court’s liberal bloc, which included new Justice Sonia Sotomayor in the case, dissented. Justice John Paul Stevens took more than 20 minutes to read a dissent from the bench, a move justices reserve for emphasizing their disagreement.

“A radical change in the law,” Stevens called the decision. He said Thursday’s majority rejects the decisions of Congress dating from 1907 and “the overwhelming majority of justices who have served on this court.”

He said the five-member majority are the only ones who believe corporate money in electoral politics should be increased, rather than controlled. Sotomayor and Justices Ruth Bader Ginsburg and Stephen G. Breyer joined his 90-page dissent.

Sen. John McCain (R-Ariz.), who co-wrote the 2002 campaign reform law with Sen. Russell Feingold (D-Wis.), said he was “disappointed” by the decision. But Feingold went further, calling it “a terrible mistake” and saying it ignored “important principles of judicial restraint and respect for precedent.”

“Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president,” Feingold added

Both senators noted, though, that the court had retained the law’s ban on so-called soft money contributions.

The U.S. Chamber of Commerce, the nation’s largest business group, said the ruling provides “clarity and predictability” for corporations, unions and nonprofit groups seeking to take part in the political process.

“Today’s ruling protects the First Amendment rights of organizations across the political spectrum, and is a positive for the political process and free enterprise,” said Robin Conrad, executive vice president of the chamber’s litigation center.

But Fred Wertheimer, a veteran campaign reform activist who heads Democracy 21, called the ruling “a disaster for the American people and a dark day for the Supreme Court.”

“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 today came down in favor of American corporations,” Wertheimer said. “With a stroke of the pen, five Justices wiped out a century of American history devoted to preventing corporate corruption of our democracy.”

From LA Times:

Supreme Court overturns ban on direct corporate spending on elections

In a 5-4 decision that strikes down a 1907 law, the justices say the 1st Amendment gives corporations, just like individuals, a right to spend their own money on political ads for federal candidates.

By David G. Savage

January 21, 2010 | 9:28 a.m.

Reporting from Washington – The Supreme Court today overturned a century-old restriction on corporations using their money to sway federal elections and ruled that companies have a free-speech right to spend as much as they wish to persuade voters to elect or defeat candidates for Congress and the White House.

In a 5-4 decision, the court’s conservative bloc said corporations have the same 1st Amendment rights as individuals and, for that reason, the government may not stop corporations from spending freely to influence the outcome of federal elections.

The decision is probably the most sweeping and consequential handed down under Chief Justice John G. Roberts Jr. And the outcome may well have an immediate impact on this year’s mid-term elections to Congress.

Until now, corporations and unions have been barred from spending their own treasury funds on broadcast ads or billboards that urge the election or defeat of a federal candidate. This restriction dates back to 1907, when President Theodore Roosevelt called on Congress to forbid corporations, railroads and national banks from using their money in federal election campaigns. After World War II, Congress extended this ban to labor unions.

In today’s decision, the high court struck down that restriction and said the 1st Amendment gives corporations, just like individuals, a right to spend their own money on political ads.

“The 1st Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech,” said Justice Anthony M. Kennedy for the court.

Two significant prohibitions on corporations were left standing. Corporations, and presumably unions, cannot give money directly to the campaigns of federal candidates. These “contribution” restrictions were not challenged in the case decided today. And secondly, the court affirmed current federal rules which require the sponsors of political ads to disclose who paid for them.

Most election-law expert have predicted a court decision freeing corporations will send millions of extra dollars flooding into this fall’s contests for Congress. And they predict Republicans will be the main beneficiaries.

Today’s decision was supported by five justices who were Republican nominees. They include Kennedy and Roberts along with Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The dissenters included the three Democratic appointees: Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. They joined a dissent written by 89-year old Justice John Paul Stevens. Speaking from the bench, he called today’s 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.”

The decision today, though long forecast, displayed a deep division of opinion on the court about the meaning of the 1st Amendment and freedom of speech. The majority said the Constitution broadly protected discussion and debate on politics, regardless of who was paying for the speech. Roberts said he was not prepared to “embrace a theory of the 1st 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.”

But Stevens and the dissenters said the majority was ignoring the long-understood rule that the government could limit election money from corporations, unions and others, such as foreign governments. “Under today’s decision, multinational corporations controlled by foreign governments” would have the same rights as Americans to spend money to tilt U.S. elections. “Corporations are not human beings. They can’t vote and can’t run for office,” Stevens said, and should be subject to restrictions under the election laws.

Today’s opinion dealt only with corporations, but its logic would suggest that unions will also have the same right in the future to spend unions funds on ad campaigns for federal candidates.

Copyright © 2010, The Los Angeles Times

From WSJ:

Supreme Court Reverses Limits on Campaign Spending


WASHINGTON—A divided Supreme Court struck down limits on corporate political spending, overturning two precedents in a ruling likely to affect campaigning in the 2010 elections.

President Barack Obama called the decision a victory for big oil, Wall street and other interests, and said he would work with lawmakers to craft a “forceful response.”

The ruling underscored the impact of former President George W. Bush’s two appointments to the court. Chief Justice John Roberts and Justice Samuel Alito joined the five-justice majority in ruling that a central provision of the 2002 McCain-Feingold campaign-finance act violated the First Amendment by restricting corporations from funding political messages in the run-up to elections.

“The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” Justice Anthony Kennedy wrote for the majority in a 57-page opinion.

The McCain-Feingold law aimed to rein in independent campaign spending by corporations and unions—that is, advertisements that the corporations or unions buy on their own to advocate for or against a candidate.

McCain-Feingold required that they channel their campaign spending by creating a special fund, known as a political action committee, which can accept donations from employees, shareholders and other affiliates. Advocates argued that the law was a valid way to prevent special-interest funds from distorting elections.

But Justice Kennedy wrote that the effort to divide corporate political spending into legal and illegal forms chilled political speech. “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” he wrote. “This is unlawful.”

Federal law has long barred corporations from contributing directly to federal political candidates, and Thursday’s ruling keeps that restriction in place.

The decision voids a key provision of the signature legislative achievement of Sen. John McCain, the 2008 Republican presidential nominee who worked with Democratic Sen. Russ Feingold of Wisconsin to draft the Bipartisan Campaign Reform Act of 2002 that informally carries their names.

Justice John Paul Stevens—part of the majority in the two opinions that were overruled—led the court’s four liberals in a dissent that stretched to 90 pages.

He called the majority opinion “a rejection of the common sense of the American people, who have…fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.” Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined the dissent.

Mr. Obama, in a statement Thursday, said: “The Supreme Court has given a green light to a new stampede of special interest money in our politics. This ruling gives the special interests and their lobbyists even more power in Washington, while undermining the influence of average Americans who make small contributions to support their preferred candidates.”

The case before the court, Citizens United v. Federal Election Commission, originated in a 2008 feature-length movie critical of then-presidential candidate Hillary Clinton. Citizens United, a conservative advocacy group, wanted to promote the film, but the election commission called it an “electioneering communication” subject to McCain-Feingold restrictions.

While nonprofits can be exempt from campaign-finance regulations if they limit their fund-raising to donations from individuals, Citizens United fell under McCain-Feingold because it accepted business contributions. Many nonprofit advocacy groups that have corporate form are also affected by Thursday’s ruling, as well as labor unions and for-profit corporations.

A lawyer for Citizens United, Theodore Olson, said, “The vast majority of corporations are either nonprofit advocacy groups–like Citizens United–or small businesses.” The ruling, he said, “enables individuals of limited means to band together to counterbalance the political speech of the super-rich.”

In 2003, the Supreme Court upheld the provision that was struck down Thursday, in a 5-4 decision that, in turn, relied on a 6-3 opinion written in 1990 by Justice Thurgood Marshall upholding a similar state campaign law.

Justice Kennedy dissented from the 1990 decision, and his opinion Thursday overruling it vindicated the position he took then. Justice Sandra Day O’Connor, who also dissented in 1990, had changed her view by 2003 and joined the majority to uphold the McCain-Feingold provision. Her successor was Justice Alito, who provided the fifth conservative vote to make Thursday’s majority.

On Capitol Hill, Democrats called for legislation to reinstate the ban on direct campaign spending by corporations, or at least to modify it in a way that would better withstand a constitutional challenge.

“This will allow the biggest corporations in the United States to engage in the buying and selling of elections,” said Rep. Chris Van Hollen (D., Md.), who is in charge of the party’s efforts to get Democrats elected in the House.

“This is poisonous to our democracy,” said Sen. Charles Schumer (D., N.Y.). Mr. Schumer said the Senate Rules Committee, of which he is chairman, will hold hearings in the next several weeks aimed at crafting legislation to respond to the ruling. He said he hoped to have a law in place in time for congressional elections this November.

Although the Supreme Court broke along familiar philosophical lines, the case itself scrambled the ideological deck. The U.S. Chamber of Commerce and the AFL-CIO both urged the court to strike down the provision, as did the American Civil Liberties Union and the National Rifle Association. Sen. McCain and the Democratic National Committee both argued for the law’s constitutionality.

The ruling not only strikes down the federal requirement, it also calls into question similar provisions enacted by nearly half the states. Montana, which adopted restrictions on corporate electioneering a century ago, filed a brief on behalf of more than two dozen states seeking to protect their own power to regulate campaign finance.

The court reached broad agreement on one lesser point, finding that the McCain-Feingold provision requiring political messages to disclose their funder was constitutional. Only Justice Clarence Thomas dissented from that holding. He cited reports that backers of a 2008 California measure abolishing same-sex marriage, Proposition 8, were harassed by their opponents.
—Martin Vaughan and Henry J. Pulizzi contributed to this article.

Write to Jess Bravin at