Let the special-interest games begin

The Supreme Court's decision on campaign finance will transform politics, in 2010 and beyond

Published January 21, 2010 11:01PM (EST)

Thursday's Supreme Court decision on campaign finance struck down a long-standing prohibition on corporations using their general funds to run campaign ads in elections and unleashed a deluge of corporate money into the political system. The move, which has been praised as a victory for free speech on the right and derided as an attack on the very integrity of our democracy on the left, marks the biggest change in campaign finance law in over 30 years.

On Capitol Hill, the reaction to the Supreme Court's decision fell fairly neatly along party lines. Senate Minority Leader Mitch McConnell, R-Ky., lauded it as a much-needed protection of First Amendment rights. President Obama, on the other hand, issued a statement calling it "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." Russell Feingold, D-Wis., expressed a similar sentiment, releasing a statement saying, "The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending our federal elections."

The Democrats are not alone in their concerns about the ruling. Trevor Potter, a Republican lawyer who served as general counsel to the John McCain 2008 campaign, told Salon, "I think it was a mistake of historic proportions by the Court -- by five justices. I think it's embarrassing to overturn a decent decision by the Court just because one justice [Justice Sandra Day O'Connor] has retired. I think the Court ignored its practices of avoiding major constitutional decisions and overturning acts of Congress if there is some other way of resolving the case. I think the Court has made a mistake by diving into what is a very political issue and by overturning its very recent precedent when the facts haven’t change ... [The Court also] makes a mistake by failing to understand the effects of this decision."

This week's ruling overturns an earlier decision in 2003, which upheld the constitutionality of most of the McCain-Feingold campaign-finance bill. Justice O'Connor, who was still on the Court at the time, voted with 5-4 majority. The new ruling, according to Potter, "is likely to lead to a significant impact on the legislative process that the Court doesn't understand because not a single justice on the Court has served on a state legislature or in a legislative body."

"Corporations are going to have more legislative control because they will be able to lobby for their interests and either implicitly or explicitly will be able to threaten the spending of millions of dollars against members of Congress who don't agree with them on votes."

Nick Nyhart, the president and CEO of Public Campaign, a nonprofit organization dedicated to reducing the role of special interest money in politics, agrees that increased corporate influence on legislators is a major concern. On the phone with the Salon, he said, "The real bad news is for people who want healthcare legislation, people who want legislation that will protect our environment, people who want legislation who want to make sure that banks are their friends, not their enemies. "

Democrats have vowed to work to pass legislation that would restore as many of the restrictions as possible, but the ruling may still have serious and visible consequences for the 2010 midterm elections, with independent issue and trade organizations likely to emerge as major players. Lawrence Noble, a campaign finance lawyer who served as general counsel for the Federal Election Commission (FEC) for over a decade, told Salon that most corporations would be unwilling to make direct expenditures in support of candidates for fear of being seen as too political. Instead, they're likely to donate to trade and issues organizations to do the campaigning for them.

"You will definitely see more money," Noble said. "I don't think you're going to see your Fortune 500 companies expressly advocating candidates, but they will be giving to organizations that will."

A memo released by the prominent Republican election lawyer Ben Ginsberg and several colleagues at Patton Boggs echoed this sentiment. It described 501c4's and 501c6's, as issue and trade groups are known under the tax code, as "likely to emerge as the biggest players in the 2010 and 2012 election cycle ... Meager disclosure requirements of their donors will make them a favorite repository of funds for independent expenditures."

The Ginsberg memo also noted that the ruling will "drastically alter the landscape for candidates and political parties." For candidates, "controlling the issues they want to run on will become a real challenge, as will having sufficient funds to portray their positions and images."

The impact on political parties could be even more extreme: "Unless the laws change, the political party as we know it is threatened with extinction. The parties do several things for their candidates and supporters -- raise money and conduct independent expenditures, conduct voter contact programs and describe the party’s position on issues, often through issue advocacy. With the limits on the amounts and sources of funds they can accept, the parties will be bit players compared to outside groups that can now conduct those core functions with unlimited funds from any source."

By Emily Holleman

Emily Holleman is the editor of Open Salon.

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