Campaign Finance Ruling: Hard To Reverse

Sens. John McCain and Russ Feingold i i

hide captionThe Supreme Court struck down part of the 2002 McCain-Feingold campaign finance law.

Susan Walsh/AP
Sens. John McCain and Russ Feingold

The Supreme Court struck down part of the 2002 McCain-Feingold campaign finance law.

Susan Walsh/AP

President Obama and campaign finance watchdog groups condemned a U.S. Supreme Court ruling that could transform American politics and give corporations and unions unfettered power to spend money in candidate elections. But there may be little they can do to counteract the decision.

The high court threw out a century-long ban on corporate spending to support candidates for office in a 5-4 ruling that reverses decades of high court decisions upholding the prohibition. By implication, the decision also invalidates similar restrictions on unions, as well as state bans.

The court split along bitter ideological lines, but a new conservative majority, bolstered by two Bush appointees, set a dramatic new tone.

Obama blasted yesterday's ruling as a victory for Wall Street, big banks, big oil and big insurance companies, and he called on Congress to take steps to fix it.

But reform advocates admitted privately that they could see few avenues to do that in light of the broad language in the Supreme Court's decision.

The ruling declared that corporations have a First Amendment right of free speech akin to individuals and rejected outright years of congressional findings that money is a corrupting influence in politics.

Both advocates and critics of campaign finance reform agree that the decision is an earthquake in the law.

"It is gonna look an awful lot like the wild, wild West when the election season heats up more," says former Republican National Committee general counsel Ben Ginsberg.

To critics of campaign finance restrictions like Ginsberg, that's as it should be, because they have long believed that corporations have a First Amendment right to express their views though campaign spending.

Jan Baran, an election law expert who has long opposed the ban on corporate spending, agrees.

"It is true that unions and corporations will be able to pool their money and spend their money in a way that can affect an election," he says. "But the way it's going to affect an election is it's going to express certain opinions about candidates, and as the court opinion said today, that's what the First Amendment protects."

Indeed, Thursday's Supreme Court decision will restructure the way election campaigns are run at all levels of government. Trevor Potter, the former chairman of the Federal Election Commission and general counsel for Sen. John McCain's presidential campaign, notes that corporate spending bans in 24 states and countless localities will be obliterated almost overnight.

"Suddenly," he says, "the prospect of a corporation that's unhappy with a zoning decision — or the action of a local mayor — being able to go in and spend enough money to defeat them in the next election, or elect a new town council — all with corporate funds — is going to be a big shock."

Judicial elections in every state will now see more corporate and union spending too, and, in Congress, the floodgates are now fully open.

Or, as Ginsberg puts it, "They will now be able to spend oodles squared."

Both those who opposed Thursday's ruling and those who applauded it, like Baran, say the Republican Party is likely to benefit from the decision.

"The potential beneficiary here would be the party or the candidates who are perceived as being more beneficial to free enterprise and business," Baran says.

Experts point to other potential consequences of yesterday's ruling. Parties may be weakened because they are still limited by law in the money they can raise, while corporations and unions can now spend with abandon.

As a result, there may be increased pressure in Congress to remove limits on party spending.

Says Ginsberg, "I do believe that this whole past 35 years of reform has now put us in a really bad system where candidates, either on their own or through parties, are small voices in the debate, and the special interest groups are running supreme."

But Potter calls the court's decision essentially naive, and he lamented the retirement of Justice Sandra Day O'Connor, who served as Republican leader in Arizona's state Senate before becoming a judge.

Seven years ago, O'Connor wrote part of the decision upholding the 2002 McCain-Feingold campaign finance law. That decision was reversed yesterday by a newly energized conservative majority that includes two justices named to the court by President Bush after O'Connor's retirement and the death of Chief Justice William Rehnquist.

"The absence of O'Connor makes such a difference on this issue because she really was the only one who absolutely got it as a legislator," Potter says. "And you've got nine justices who all have completely different backgrounds — either academics or executive branch — and they don't have a personal understanding of what goes on in a legislature, and how the money is raised, and what the pressures are."

Other critics of the decision are even more blunt. Fred Wertheimer, who has helped craft every piece of campaign reform legislation since Watergate, calls the decision "the most radical and destructive campaign finance decision in Supreme Court history."

He adds, "Chief Justice [John] Roberts and four of his colleagues abandoned long-standing judicial principles, judicial precedents and judicial restraint."

Thursday's high court ruling could well be just the first in a string of major defeats for campaign reformers.

After decades of losing these battles in the courts, conservatives have been on a recent roll. Indeed, earlier this week, a federal court in Arizona struck down a state clean election law that has been the model for other states in setting up public financing for elections based on matching funds.

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