Supreme Court considering major campaign finance overhaul
Posted by sanityinjection on September 8, 2009
Politico reports that the Supreme Court will be hearing arguments this week in a case that could have major ramifications for US campaign finance law. Specifically, the court is considering weakening existing restrictions on political advertising by corporations, unions, and non-profit groups.
Under current law, these groups are allowed to fund advertising on specific issues such as health care reform or climate change, but they are not allowed to fund ads for or against a particular candidate for office. Although many changes have been made to campaign finance law over the years, this particular aspect has been with us for over 100 years, as concerns about the power of corporations to influence the federal government were already being raised in Teddy Roosevelt’s time.
Opponents of campaign finance restrictions have consistently argued that spending money on political advocacy is the equivalent of free speech, and that such restrictions are a violation of the First Amendment. In the past, the Court has been skeptical of this argument, but recently the Court seems to be more open to loosening restrictions.
One point that I have not heard discussed much in relation to this issue is the question of foreign influence. Foreign citizens are prohibited by law from contributing to US political campaigns. But suppose you have a corporation, based in the US, but whose Board of Directors are all citizens of some other country – China, for example. Wouldn’t allowing such a corporation to spend freely on ads backing or opposing candidates essentially allow rich foreigners – or worse, foreign governments – to evade the law and exert unwanted influence on US elections?
I’ve gone back and forth on this issue. As a general rule I support fewer government restrictions on how individuals and groups are allowed to spend their money. But I have seen the potential corrupting influence of special interest groups in action, and I believe there is a compelling public interest in combating that. On the other hand, I do think that corporations, unions, and other groups have the right to be heard on issues that are important to them – which they can be under current law. I am not convinced that current campaign finance restrictions are serving to muzzle free speech in practice. Witness the controversial op-ed piece by the CEO of Whole Foods opposing the House health care reform bill.
There is also an argument to be made that the Court is engaging in “judicial activism” and going beyond its mandate in expanding this case to rule on the broad scope of campaign finance restrictions. I haven’t reviewed the facts of the case closely enough to say whether I agree with this charge, but I do think those of us who oppose judicial activisim have an obligation not to dismiss it out of hand.
What do you think?