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Citizens United v. FEC – What’s a Legislature to Do?

A few days ago, the Supreme Court decided Citizens United v. Federal Election Commission, holding that corporations, both for-profit and nonprofit, have a constitutional right to spend their own money on campaign materials (including TV commercials and written materials) in support or opposition of a particular candidate for federal office. Under the McCain-Feingold Act, the law which laid the groundwork for most campaign finance regulations, it was illegal for corporations to do this within 60 days of the relevant election.

President Obama, as well as Senators John McCain and Russ Feingold (the 2 principal sponsors of the legislation which was partially invalidated in the ruling) were highly critical of the Court’s decision. One online media outlet even called for the 5 justices who voted for the decision to be arrested and charged with treason.

Congressional Democrats, perhaps seeing a populist cause to grasp onto in the lead-up to the 2010 midterm elections, are already considering legislation to limit the decision’s applicability and scope.

However, short of passing a constitutional amendment to reverse the decision, it seems that the options of legislatures are quite limited. There is now a constitutional right for corporations to directly campaign in elections, so they can’t simply pass a new law similar to the one that was overturned. In the above link, Erin Miller, of SCOTUSblog (which is highly recommended, by the way), suggests that strict disclosure requirements for corporate contributions, noting that for-profit businesses are not likely to alienate significant numbers of their customers by publicly supporting controversial political positions. This seems like a way to take some of the edge off of this ruling, without actually restricting anybody’s right to free speech – it would simply make corporations accountable for their speech. It would also likely be held to be constitutional.

They do have some other options other than an outright ban, however. For example, Congress could likely enact a law requiring corporations to get shareholder approval before they spend corporate funds on a political campaign. They can also amend the tax code to say that political spending is not a business expense, so such expenditures will not be tax-deductible. Finally, they could require the CEO, or some other officer, of the corporation to state in political advertisements that they approve the message, similar to what candidates in federal elections must do. In theory, attaching one’s name to an advertisement should reduce the incentive to use dishonest or underhanded tactics.

The important point for legislators is that most, if not all, of these measures are very likely to withstand constitutional scrutiny, even under the highly permissive standards established by Citizens United. Furthermore, it gives Democrats a much-needed opportunity to minimize likely Republican gains in the 2010 midterm elections. Many, though certainly not all (See: John McCain) Republicans have expressed support for the decision. As Republicans learn that they can no longer rely on the Religious Right to serve as a reliable base, and have to court the conservative populism of the “Tea Party” movement, they will have to tread lightly on this issue, as “special interest” has become a dirty word for them, as well as for many moderate-to-liberal voters.

It should be noted, that some organizations are already calling for the Constitution to be amended, to invalidate this decision. Most of those organizations have already written the proposed amendments. The details of them vary, but they all would give Congress what appears to be plenary authority to regulate campaign spending by corporations, and lay out the principle that the constitution only protects the rights of human beings, not corporations.

Will any of these, or similar, amendments actually be enacted? My hunch is that they probably won’t. Amending the constitution is a lengthy process, and in order to become part of the constitution, an amendment must be approved by a two thirds majority of both houses of Congress, and must then be ratified by the legislatures of three quarters of the states. Given how divided politics has become in recent years, it’s nearly impossible to get two thirds of Congress to agree that the sky is blue, let alone to amend the Constitution.

Ken LaMance

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