Supreme Court Lifts Campaign Spending Limits
REBECCA ROBERTS, host:
This is TALK OF THE NATION. Im Rebecca Roberts in Washington. Neal Conan is away.
Today, the Supreme Court struck down federal legislation that restricts how corporations can spend their money in political campaigns. By a five-to-four vote, the court overturned a decades-old law that says companies and unions can't use money from their general treasury funds to elect or defeat a candidate. The court also struck down the provision of the 2002 McCain-Feingold law that says independent political ads about candidates can't air 30 days before a primary or 60 days before a general election.
Later in the hour, a status report on overhauling health care, but first the court's decision on money and politics. How do you think this decision will affect the 2010 midterm elections? Our number here in Washington is 800-989-8255. Our email address is firstname.lastname@example.org, and you can join the conversation at our Web site. Go to npr.org, and click on TALK OF THE NATION.
Joining us now in Studio 3A is David Savage. He covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. Welcome back, David Savage.
Mr.�DAVID SAVAGE (Supreme Court Reporter, Los Angeles Times, Chicago Tribune): Hi, Rebecca.
ROBERTS: Tell us about the case that led to this decision.
Mr.�SAVAGE: It looked like a fairly small case. A conservative group, Citizens United, in 2008 had done a DVD, a movie about Hillary Clinton, sort of a slashing attack on Hillary Clinton.
When they wanted to sell it and advertise it, they sort of ran afoul of some criticism from the Federal Election Commission. So they sort of went to the Federal Election Commission and sued on First Amendment grounds, and said basically, you can't regulate us.
It looked like a small case for a number of reasons, they're a nonprofit corporation. They get a very small amount of corporate money, and it was an odd thing. It was selling a DVD about a movie.
The case came up to the Supreme Court. The justices heard the argument, and you could tell in the argument that five of the justices, the five conservative justices, didn't agree with the basic premises of modern campaign finance law, which was corporate money can be restricted, that the government can restrict corporate spending on campaigns.
So they re-argued the case in the fall to take up the big question, not to decide the small question about Citizens United, but say, does the First Amendment, protection for free speech, protect corporations that want to run ads saying, you know, elect so-and-so or defeat so-and-so.
Today by a five-to-four vote, they said yes, there is this corporate free-speech right to spend any amount of money on election ads, and we're hereby overturning all the previous decisions that suggested there was such a limit.
ROBERTS: And how unusual is that for the Supreme Court to ask the lawyers in the case to re-argue it to consider the broader measure?
Mr.�SAVAGE: It's fairly rare. Sometimes they get confused on a small point, and they will re-argue a case. It happens about once a year. This was unusual in the sense of taking a very small case and saying let's make it a big case. But the truth is, for a number of years - going back probably 20 years - Justices Scalia and Kennedy thought that the First Amendment protected all speech. It didn't matter whether it was a corporate speech or union speech, and they had finally had a majority, now, to say that.
ROBERTS: Now to be clear, this wasn't about the content of the movie, "Hillary Clinton: The Movie." It was how it was paid for. Had they paid for it with PAC money, it would have been fine.
Mr.�SAVAGE: Yes, there would not have been any objection. Corporations, you know, people know about PACs. PACS essentially are groups of individuals who give money. It's not actually the corporations' money. And so that wouldn't have been a problem.
There have been over the years, campaign finance law is very complicated. There's been a lot of decisions back and forth, applying the principles. What was interesting in this case was, as I say, the five conservative justices don't agree with the basic premises, which is that some types of money can be restricted. They say it's all speech. It's speech about politics, and the First Amendment doesn't allow the government to limit speech about politics.
ROBERTS: Either by corporations or by labor unions, which was not the case in this issue, but certainly would come up.
Mr.�SAVAGE: Correct, correct.
ROBERTS: Also joining us here in Studio 3A is Ron Elving, NPR's senior Washington editor. Welcome to you, Ron.
RON ELVING: Good to be with you.
ROBERTS: So in a broad sense, and we'll get into this in more detail, what does this mean about money-raising for candidates?
ELVING: It's going to get easier for some candidates to raise money, because if they can find well, let's put it this way, not necessarily to raise money for their own personal campaign.
ROBERTS: Right. Corporations still contribute to a campaign.
ELVING: That's still a 1907 law that this particular case does not overturn, although it certainly makes the circumvention of that law a good deal more easy for corporations, or perhaps, as you said, labor unions.
If you're a candidate trying to raise money, this does not ease your problem of trying to get direct contributions, but what it does open is the possibility that allies - either in organized labor or in the corporate world - can come to your assistance with as much money as they can muster. And that, of course, changes the game quite a great deal.
And as we look to the 2010 congressional midterms, there is going to be, or has been, up to this last week, a considerable question as to whether or not a lot of challengers and that would be particularly Republicans running against the Democrats who are the clear majority in both chambers, are going to be able to adequately funded to take up the race.
In other words, a lot of people were trying to decide whether or not to run, whether or not they would be able to mount enough of a campaign.
Now, a lot of Republicans got some encouragement in Massachusetts on Tuesday, when previously obscure State Senator Scott Brown won a seat that been held by the Kennedy since 1952. I think a lot of people have paid attention to that particular outcome.
And now, they're going to have an access point, if you will, to a whole new world of potential funding.
ROBERTS: So what might that look like? Say it's the last week of October, we've got a close congressional race, and one candidate has come out in favor of lower emissions on the car industry. What can GM now do?
Mr.�SAVAGE: Well, if General Motors has a strong view about a particular issue, and I think we can presume that they and many energy companies and many financial companies are going to have strong views of the legislation that's in play in the 111th Congress, they can mount a campaign in a given state or in many states, using ads that say: This is how we feel, and we think that this candidate has probably got the better view on this particular issue.
Or, I suppose, they can take off after a candidate they don't like on any basis that they choose, whether it's specifically on the issue that's of interest to that corporation or labor union or not, and just mount a campaign saying that this person really ought to be elected or ought not.
ROBERTS: And David Savage, Ron referred to the 1907 law that says that corporations can't contribute directly to political campaigns, which remains intact. What other campaign finance restrictions do remain intact? What wasn't eviscerated by this decision?
Mr.�SAVAGE: Well, there's still a disclosure law. They actually affirmed that today. Only Justice Thomas dissented. So basically if you're a corporation, and you're running an ad, you have to disclose, you know, who we are, and we're paying for this ad. And as you say, the contribution limit stands. Corporations can't give money directly to a Senate campaign. They can just run ads for or against the senator's opponent.
And as Ron knows, everybody knows, most of the money raised in politics is for campaign ads. So if you can have a corporation or a corporate group imagine pharma or the energy industry or whatever, spending millions of dollars to attack your opponent with campaign ads right before the election, that's a pretty big benefit.
ROBERTS: We have an email for you, David Savage. This is from Linetum(ph) from Ann Arbor, who says: Can you please help clarify for me the personhood of corporations in the United States? How is it that a corporation has any constitutional rights at all, much less the sacred right of freedom of speech?
Mr.�SAVAGE: Good question, and it's essentially what Justice Stevens said in a 90-page dissent. He repeated it from the bench, that corporations are not human beings, they don't vote, they can't run for office. We've always treated them as different. They're regulated by the states.
Let me see. She wants to know what the majority thinks. The majority kept saying the First Amendment is about speech, protecting speech, and we don't have disfavored classes of speakers. Corporations are important entities in our society. They represent certain interests, and the court's view is that unions and corporations are entities, and they deserve the same free-speech rights as others.
I can't do much better than they just fundamentally believe that corporations are and all kinds of groups are entities, and the First Amendment demands that everybody all speech sort of be treated the same.
ROBERTS: We are talking about today's five-to-four Supreme Court decision, saying that corporations and unions can spend whatever they want in political campaigns, not directly for the candidates, but for independent expenditures -even right up to the election itself.
You can join us at 800-989-8255. Let's hear from Mike in Fort Myers. Mike, welcome to TALK OF THE NATION.
MIKE (Caller): Well, thanks a lot for taking my call. I am actually very thrilled by this. I'm a lifelong Republican who has not liked John McCain for the single reason of him passing a law, McCain-Feingold, that was obviously unconstitutional.
However, more to the point, I'm thrilled because in this next election, all those interested parties are going to be able to speak. I found it very ironic that the government thinks it's okay to regulate, to tax, to sometimes run into the ground corporations and then gag them when election time comes and they want to defend themselves.
Now the gag is taken off. Now if they want to kick, these people, or these entities - if they want to try and tax them and regulate them and harm them, now they're going to have to answer to the same people that they're trying to hurt whenever election time comes.
MARTIN: Mike, thanks for your call. Ron Elving, Mike is hardly the only Republican who criticized John McCain for supporting these restrictions. It was an issue in the campaign.
ELVING: Absolutely. During the primaries, one of the things that John McCain had to answer for, to the hard and fast, rank and file of the Republican Party, was his longtime opposition to the way that campaigns are financed in the United States, and of course his association with Russell Feingold in the well-known McCain-Feingold Law of 2002, bipartisan campaign finance reform and so forth.
This is something where John McCain, because of an incident early in his Senate career, where he was tainted with an S&L operator who had given a lot of money to a number of senators, including John McCain, several of those senators were disciplined by the Senate.
John McCain actually got off very easily, pretty much was exonerated as having done anything for this S&L operator - savings and loan operator. That was a scandal of another financial era. And yet, John McCain felt quite singed by this particular experience and immediately went out and became a disciple, if you will, and a leader in the movement to restrain big money in American politics with the idea that speech is one thing, and money to dominate the airwaves and, if you will, monopolize the debate, is another.
Now, the Supreme Court was on record from 1976 in the Vallejo case, in saying that money, when it's used to convey a message from whatever source, had the protection that speech has under the First Amendment, and that's essentially what a lot of this argument has been about.
ROBERTS: That's NPR's senior Washington editor Ron Elving. We're also joined by Los Angeles Times and Chicago Tribune Supreme Court reporter David Savage.
The Supreme Court justices have overturned key campaign limits. We'll talk more about what that means after the break, plus we'll talk about what's next for the health care bill, and we're taking your calls, 800-989-8255. I'm Rebecca Roberts. It's TALK OF THE NATION from NPR News.
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ROBERTS: This is TALK OF THE NATION. I'm Rebecca Roberts in Washington. Today, the Supreme Court made a decision that may reshape the way that elections are conducted, ruling that the government may not ban political spending by corporations in elections.
We're talking about how this changes campaign finance this hour with David Savage, who covers the Supreme Court for the Los Angeles and Chicago Tribune and with NPR senior Washington editor Ron Elving.
How do you think this decision will affect the 2010 midterm elections? Give us a call at 800-989-8255. Our email address is email@example.com. And you can join the conversation at our Web site. Go to npr.org, and click on TALK OF THE NATION.
David Savage, we have an email for you from Christine(ph) in Farmington Hills, Michigan, who says: Didn't these latest justices promise to respect previous rulings? Can't remember the term, she says. If so, how do they justify this? I know the assurance was more about Roe versus Wade, but doesn't it apply here, too? I don't want the corporations to elect our presidents, even though I am generally conservative.
Mr.�SAVAGE: The term is stare decisis, which yes, she's right to remember John Roberts and Sam Alito both went up to the Senate and said that they would respect precedent and not, sort of, upset the apple cart when they got on the Supreme Court.
John Roberts wrote a long, concurring opinion today to explain why this is different. He said, you know, I never promised that I'd uphold decisions that didn't make sense and couldn't be justified, and at some time, you've got to decide.
And he said, at some point, we've had a couple campaign finance cases. We keep finding holes in this law. We were finally forced to decide: Can the government regulate corporate speech? And he basically said I'm with the majority. Speech is speech, and we can't censor any group of people, including corporations. So he...
ROBERTS: Even though this did mean overturning two of their own decisions.
Mr.�SAVAGE: Absolutely right, overturning some fairly important decisions from the very recent past. In 2003, there was a five-to-vote in a case called McConnell versus FEC to uphold the McCain-Feingold Law. All that's changed since then is that Sam Alito Justice Sandra O'Connor stepped down, and Sam Alito replaced her. A five-to-four majority flipped the other way.
ROBERTS: You know, it was interesting to me that Mike, our caller from Fort Myers, Florida, supported the decision and said he was a conservative Republican. The emailer we just read said she objects to corporate influence even though she's generally conservative. There is this perception that corporate spending will help Republicans more than Democrats. Ron Elving, is that true, and if so, where does it come from?
ELVING: Well, among other things, it comes from Democrats who don't seem to be reading this decision with much enthusiasm. The president of the United States, for example, has issued a statement calling it a huge victory for big oil and for all kinds of nasty corporations and taking the view that this is contrary to the American individual person's best interests, which he feels and said today are not adequately represented in Washington, whereas those of the corporations quite clearly, in his view, are.
ROBERTS: Yeah, David Savage?
Mr.�SAVAGE: Rebecca, there's some academic commentary on this case, I thought was really interesting. It said some people have made the observation that there's two great distrusts among the American public. One is a distrust of big government, and the other is distrust of big corporations, big corporate money. And this was the real divide.
The five conservatives basically say we distrust big government to be regulating political speech. That's the one thing government shouldn't do. The five dissenters, the liberals, say...
ROBERTS: Four dissenters, yeah.
Mr.�SAVAGE: I'm sorry, the four dissenters say of course we can regulate corporations. Corporations shouldn't be able to dominate the airwaves prior to the elections. So it is the two great who-do-you-distrust-more?
ROBERTS: Let's take a call from Andy(ph) in Cincinnati.
ANDY (Caller): Yes, thank you.
ANDY: I'm a first-time caller. I would just like to know how this might affect our elections by companies with heavy foreign interests, how they might be able to affect our elections.
Mr.�SAVAGE: Well, that's an interesting question because Justice Stevens, in the dissent, says this would allow a multinational corporation controlled by a foreign government to pour millions of dollars into an American election campaign. That's what you've ruled today. So we'll see how it plays out, but that's his view of what they've said.
ROBERTS: Let's take a call from David(ph) in Tucson. David, welcome to TALK OF THE NATION?
DAVID (Caller): Yes, I think that this will it'll make my voice just even less. The best I could do maybe is call a representative or a senator or write a letter to the editor. And when you have corporations pouring millions and millions of dollars into this, they could be banks, the banks can shape it by getting candidates that they want to support their particular points of view.
There's no way that my opinion or millions of other individuals can have a voice that comes anyplace close to that. I just think this is not a good decision for the people.
ROBERTS: David, thanks for your call. Ron Elving?
ELVING: Yes, I think as David has suggested, there are two kinds of populism -or there are two ways in which populism manifests itself in American politics. One is people rebelling against the power of big money, and the other is the power of big politics, if you will, whether it's at a state level or here in Washington.
And this week, we saw Scott Brown, who we mentioned earlier, win a race in Massachusetts largely running against big power, running against the health care bill as a representative of big power of the Democratic Party as a big power party in Massachusetts and in Washington.
And if there's any kind of a silver lining in this decision today for Democrats, it is a chance for them to change the subject a little bit away from big power, away from their own power, and back to the power of corporations that they have run against when they have run successful election campaigns in the past.
ROBERTS: And get back to their little-guy-against-the-big-guy roots.
ELVING: This is one place where they can make that argument. And consider Goldman Sachs, which has announced in the last 24 hours that I believe they paid something like $16 billion in compensation to top executives, including bonuses. Will they take an interest in running corporate-supported campaigns on behalf of candidates who oppose the proposed tax on those bonuses, or will they take an interest in supporting candidates who support a tax on those bonuses?
I mean, I think people can guess which side the Goldman Sachs money might be deployed. And I don't know that they have such a campaign in the works, but any big bank, any big investment interest, any big financial interest, could conceivably take that view.
Mr.�SAVAGE: In the discussion of this case, some political experts also said, they said you may not be able to see, quickly, the impact of this. But imagine if you're a member of Congress, and you support the cap and trade bill or whatever it is, the health care bill, and a corporation or the pharmaceutical industry threatens and says we're going to spend a lot of money in the fall for anybody who takes this particular position.
A lot of members of Congress would you know, you'd have to think twice. Do I really want to take a particular stand if I know a lot of money can come in on the other side against me?
ROBERTS: Well, there's also an interesting wrinkle that, in this context, most of the big money is spent on TV buys, right? I mean, that's what access you buy in big amounts to reach the most amount of people that an average voters can't necessarily do.
However, we are also living in a free-media age on a lot of other platforms. And we have an email from John(ph) in Princeton, who says: Hypothetically, what are the chances, with all the free media on the Internet, such as Facebook, Twitter and YouTube, of a moneyless political campaign? I'm imagining a truly maverick candidate that's beholden to no corporation lobbyists, unions, religions, et cetera. Ron?
ELVING: I think that there is an alternative to big media today, but that's still what it is, it's an alternative. And while people can find a place to express themselves, the question is how many other folks who may not already agree with you are going to see it on that blog that you write for, for people who already agree with you.
Now, if you want to go out and reach a vast uncommitted voting public, and that's usually what candidates are looking for - particularly in a midterm year - that's going to be still the province of large money. I suspect that television ads are still going to be expensive, and most of them are going to go to the people who have the most money.
ROBERTS: Let's hear from Steve(ph) in Monroe, Connecticut. Steve, welcome to TALK OF THE NATION.
STEVE (Caller): Hi. I come from Connecticut, where the opportunist Joe Lieberman, in collusion with the insurance companies, have been running ads aimed at older voters, claiming that if health care is passed, horrible things will happen to them. And this is just a taste of what's going to be coming up, I fear, in the fall.
We have unlimited interests special interests with unlimited money just spinning every which way. I mean, I dont see where it serves the people.
ROBERTS: Steve, thanks for your call. You know, it's interesting, in terms of where this money is going to go, not only geographically and in what races but also what tone it takes.
I mean, I think with the rule that you couldn't advertise right before an election, in the month before an election, it in some ways tended to lead to harsher tones and harsher messages in ads because they wanted them to be more memorable, you know.
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ROBERTS: I mean, you wonder if this is all going to be ugly, negative campaigning. That's certainly what people associate with independent expenditures, but that's not a rule.
Mr.�SAVAGE: I think what people are looking for as candidates and as, well, I should say as those interests who were paying for such ads, is effect. Whether it's done through a negative ad, which is pretty memorable oftentimes, even an ugly image maybe stays longer than a positive one, or whether it is some kind of sweetness and light or just praise for the candidate, they prefer praise for the purpose or the principle of First Amendment rights, whatever it happens to take the form of. They just want it to be effective. And whether that's positive or negative will depend on each individual case and ad maker.
ROBERTS: Let's hear from Gregory(ph) in Fort Wayne, Indiana. Gregory, welcome to TALK OF THE NATION.
GREGORY (Caller): Hello.
ROBERTS: Hello. Gregory, you're on the air.
GREGORY: Yes. I just had one comment I'd like to make, and this regards the changes for the midterm elections from the change in the corporate contributions to political speech. I think that the monolithic nature of corporate contributions is probably well overrated. And I don't think it'll have that great an effect. And I'd just like to say that the union or big labor contributions which remain in effect are far more monolithic in their contributions towards one political party as opposed to that of the corporations.
ROBERTS: Gregory, thanks for your call. So the idea that there are corporations that might support various political views, but for the most part labor unions support Democrats.
ELVING: That is correct. I think though that what we're looking for here with respect to the 2010 election is where industries are going to be weighing in because of the legislation that they feel in some sense or another threatened by in this Congress.
So if we're talking about health care or financial reregulation or the energy bill or what have you, the people who are most likely to be making an outlay there are the people who have a major financial stake in any of that legislation. And that - and then, in each of those cases, that would tend to be big corporations that would either be taxed or would, in some sense or another, lose some of their ability to operate as they wish and make money as they wish.
ROBERTS: And I don't know if either of you have an answer for this question but it's an interesting one from Marcia(ph) in San Antonio who says, what recourse do shareholders have if they don't agree with the stand corporations take on political issues? How does - and how does this ruling affect nonprofits? David Savage?
Mr. SAVAGE: Well, in the first one, this came up at the oral argument and John Roberts or somebody said, well, they can sell their stock, which is not a particularly helpful suggestion if you've got a pension plan or whatever.
I think one of the interesting ideas may be is if the Democrats in Congress try to put forth some bill to say to require corporations to disclose to their shareholders that they're contemplating making political contributions. Because a lot of shareholders might say, I don't want my - I want you to go make money, I don't want you spending the money on politics. So there may be an attempt to require more corporate disclosures to their own shareholders about political spending.
ROBERTS: That is David Savage. He joined us here in Studio 3A. He covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. Thank you so much for joining us.
Mr. SAVAGE: Thanks, Rebecca.
ROBERTS: And Ron Elving, NPR senior Washington editor, also joined us here in Studio 3A. But Ron, we're going to ask you to stick around. Thanks for being here.
ELVING: Thank you, Rebecca.
ROBERTS: You are listening to TALK OF THE NATION from NPR News.
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