From the legendary arguments between Thomas Jefferson and Alexander Hamilton regarding the role of money in our new born democracy, to Santa Clara County v. Southern Pacific Railroad Company, and finally the most recent Supreme Court rulings on corporate electioneering communications, the ongoing debate over how the rights of interest groups and corporations should or should not exist in relation to the rights of individuals has been a constantly evolving one throughout our history. Most recently, we have seen the bitter emotions of this long running battle culminate with shaking heads during the State of the Union Address, and the emergence of yet another highly divisive chapter in our politics.
The debate has also generated some important questions: First, Given their inherent monetary power over individuals and small business owners, should corporations be able to advertise on behalf of candidates and special interest causes within 30 days of a general election and 60 days from a primary? Second, should companies who have foreign shareholders be allowed to put ads on the air which could, in theory, represent the interests of countries other than the United States? And finally, do the legal definitions of a “person” under Chapter 1, title 1 of US Legal Code, basically allow corporations, whether for profit or non-profit, to act as individuals with all of the protections granted to individuals under the Constitution? To answer these questions, we must look at the precedent set by the Supreme Court’s recent decision in Citizens United v. Federal Election Commission, 558 U.S.
The 2002 Bipartisan Campaign Reform Act (BCRA), often referred to as the McCain-Feingold Act, set the rules of the game up to protect the individual voter from being overrun by powerful corporate lobbies. To do this, the act put a federal ban on corporate financing of political campaigns, and prohibited corporations from airing ads that named federal candidates within 30 days of a general election and 60 days from a primary. Despite the laws set forth in the BCRA, the non-profit corporation Citizens United decided to go ahead and try to air an anti-Hillary Clinton film featuring her image on DirecTV before the 2008 Primary Elections. This action would have been in direct violation of McCain-Feingold., but after district courts upheld the precedent set in BCRA and upheld in McConnell v. Federal Election Commission, Citizens United appealed their case to the highest court, claiming their film was factual and non-partisan, thus the fate of corporate advertising in federal campaigns was once again put on trial.
In a complex 5-4 decision, the Supreme Court overruled the provision of McCain-Feingold that prohibited corporations from broadcasting electioneering communications that mention a candidate within the previously mentioned timeframe. Therefore, in the upcoming midterm elections, and the 2012 elections, barring a reversal by the Supreme Court, corporations will be able to put their monetary power behind partisan campaign advertisements.
Advocates for the ruling will mention that the court did not overrule the parts of the BCRA which ban political contributions by corporations and full disclosure in advertisements a law, but there is no denying that the individual person is in no way as powerful as a corporation with a given interest. They will also mention that by limiting corporations, we would also risk suppressing the media, which is an argument made by Justice Kennedy in the majority opinion.
As we move closer to the2010 Election, there could be an historic level of corporate advertising for candidates from all parties. Though it is made very clear in the law that no campaign funds may be collected from foreign corporations, there is nonetheless a sense of dissatisfaction amongst many that these changes to McCain-Feingold have allowed us to get very close to this kind of long distance financing. The full power of TV ads will be put on display, as individuals will see millions spent to sway public opinion in the name of corporate interest. Candidates will have little choice but to become prisoners to the powerful corporate special interest, as there will be no way to compete monetarily without adjusting to the new rules of the game.
Going forward, it will be a trying time for the little man, the small business people who can’t afford to advertise their cause, or the politician who wants to stick to his core values but knows he has no chance of winning an election without giving the go ahead for partisan corporate ads. It would also seem that in a thriving democracy every citizen should have the equal right to advocate their cause with the benefit of an even playing field. This is not the case after the Supreme Court’s latest ruling. There will likely be more competition for ad space created by corporate giants, and the richest Americans will likely benefit from the opening of the advertisement loophole, but, in the end, the realistic ability of the common American to be heard over the drowning power of corporate interests may be lost for now.
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