- The Washington Times
Friday, January 22, 2010

In a decision with profound implications for the role of money in American campaigns, the Supreme Court on Thursday gave interest groups, unions and corporations the right to pour money into issue advertising in political races - reigniting the passionate battle over the influence of cash on the electoral process.

The 5-4 decision punched a hole in the complex web of federal campaign-finance laws and rules in finding that those groups should have the same rights to spend money on political ads as any person. Direct contributions by corporations and unions to individual candidates are still forbidden.

Supporters cheered the ruling, which they said returns the country to the core free-speech precept that political speech should be protected, no matter who or what is speaking.

Critics warned that the foundations of American democracy are at stake and that big businesses will be able to spend enough money to influence elections.

In stark language, the court acknowledged that it was overturning its own precedents, but Justice Anthony M. Kennedy, writing the majority opinion, said the justices were now returning to “ancient First Amendment principles.”

“The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” Justice Kennedy wrote in an opinion overturning a 1990 case and part of a separate 2003 case that upheld most of the McCain-Feingold campaign-finance laws, enacted in 2002.

Justice Kennedy was joined in his opinion by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas.

Sounding dire in his dissent, Justice John Paul Stevens called the decision an unprecedented assault on the court’s principle of “stare decisis,” or reliance on precedent.

“The court’s ruling threatens to undermine the integrity of elected institutions across the nation. The path it has taken to reach its outcome will, I fear, do damage to this institution,” Justice Stevens said.

He said the ruling turns over power to corporations and unions at the expense of political parties, who will have a tough time fighting back because of the restrictions on their own fundraising and spending.

On Capitol Hill, Rep. Alan Grayson, Florida Democrat, called the ruling “the worst Supreme Court decision since the Dred Scott case.” The 1857 Dred Scott decision held that slaves could never be citizens, nor were they entitled to constitutional protections.

Sen. Charles E. Schumer, New York Democrat, and Rep. Chris Van Hollen, Maryland Democrat, immediately vowed to try to pass a bill to overturn the ruling. They acknowledged that it would be difficult, but said there could be room to attach new rules to corporate political ad spending.

“This threatens the viability of our democracy. This threatens the viability of what we’re all about here,” Mr. Van Hollen said.

The case stemmed from “Hillary: The Movie,” released by conservative nonprofit group Citizens United. The group wanted to be able to run television ads promoting the 90-minute documentary, a critique of presidential candidate Hillary Rodham Clinton.

But the Federal Election Commission said that amounted to political communication financed by corporate funds, which was banned by federal law. Under campaign-finance laws, corporations are forced to create separate political action committees, which were bound by myriad fundraising, spending and reporting rules.

Citizens United sued, and the decision has been steadily moving up the federal courts for the past two years.

President Obama also promised to try to curb the decision.

“With its ruling today, the Supreme Court has given a green light to a new stampede of special-interest money in our politics,” the president said in a statement. “It is 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.”

Richard Briffault, a law professor at Columbia Law School, said it will be difficult for Congress to craft legislation to limit business spending, since most corporate law is written at the state level.

He also said it’s not immediately clear how much will change in campaign finance, but expressed doubt about the dire predictions. He noted that about half of states had banned corporations from making independent political expenditures and half had allowed it.

“I don’t think you could see one was demonstrably more politically free,” he said.

Thursday’s ruling does strike down state laws that banned independent corporate political spending.

Those who fought for more campaign freedom cheered the ruling.

“The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly decided ruling of the court,” said Hans A. von Spakovsky, a former Republican member of the Federal Election Commission and current senior legal fellow at the Heritage Foundation.

The Supreme Court first heard the case, Citizens United v. the Federal Election Commission, in its 2008-09 term, but instead of issuing a ruling, the court asked that the case be reheard to address the fundamental questions of restrictions on corporations.

The case was reheard in September and was the first in which Justice Sonia Sotomayor heard oral arguments. She sided with the court’s minority in Thursday’s decision.

In the wake of the ruling, a number of groups erroneously accused the court of lifting the limits on corporate contributions to political candidates. The decision does not end those limits, which require any contribution to be made by a corporation’s political action committee, which must abide by strict rules.

“The opinion very specifically talks about and upholds the limits on contributions,” Mr. von Spakovsky said.

The decision also doesn’t overturn the ban on so-called “soft money,” the uncapped donations to political parties that had swamped the political process in the 1990s.

The court, ruling 8-1, also upheld the law’s requirements that any group running political ads must disclose the names of its contributors. Justice Thomas dissented from that part of the decision, arguing that there is a right to anonymous speech that is being circumscribed by the disclosure and reporting requirements.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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