January 2010

For those concerned about special-interest spending in elections, today's Citizens United ruling was an unmistakable setback. This ruling pours gasoline on an already raging bonfire that will affect all federal and state elections. And it will pose an especially grave threat to the integrity of elected state courts.

But today's Citizens United ruling does have a silver lining: it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources. Companies running so-called independent campaigns can literally spend infinite amounts. But they do not have a constitutional right to do so anonymously.

The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.

In today's ruling, the U.S. Supreme Court said businesses can spend directly from their treasuries on federal elections-a ruling that could unleash a tsunami of campaign cash. And that's clearly just the beginning. As quickly as they can be cranked out, new lawsuits will demand equal rights for unions-and for spending on state and local elections, not just federal campaigns.

It's easy to imagine where this will lead, especially for those who focus on the specialized area of judicial elections.

Today, the Supreme Court announced that corporate campaign spending is protected by the First Amendment. That is, the Federal government and states may not restrict corporations' use of corporate money -- money that corporations got by charging customers more than they had to or paying employees, suppliers, and investors less than they could have -- to influence elections. Obviously, business corporations will be forced by the pressures of competition to use their funds to try to use politics as a new forum for competition. Producing a better product is far less likely to be profitable than winning legislative changes in the rules of the game that advantage companies that are already profitable and hinder potential threats to those profits, whether in the form of competing products or health, safety, anti-pollution or other efforts to support the common good.

The decision turns the First Amendment on its head. The First Amendment has two main purposes: first, to protect republican and democratic politics by ensuring that citizens are free to criticize the government, and second , to create a space free from government intervention where people can follow their own idiosyncratic whims regardless of the taste of others. This decision is a major set-back to both purposes.

Most importantly, if corporations -- which are not citizens and many of which are multi-national organizations with interests that may be radically opposed to those of ordinary Americans -- are allowed to freely intervene in our elections, then each citizen must have a corresponding decrease in influence. My contribution means less if I must compete with BP-Amoco and not just my fellow Americans' money.

Moreover, at least for the managers who will now view themselves as required by law and market competition to spend corporate money to influence elections, the Supreme Court's radical revision of the Constitution forces them to use the corporations they run to advocate policies they may well know are wrong for the country.