Originally posted at the NY Times’ Room for Debate blog.
This decision by the Supreme Court may well dwarf in impact the results of Tuesday’s election in Massachusetts. It is breathtaking in its scope: it overturns doctrine dating back a century and laws upheld in 1990, that banned corporate managers from directly spending shareholder money in elections.
There was no trial record; no reason to reach the decision; a rushed re-argument (followed by a delay that put this neutron bomb square into the middle of the political season). This matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court. In that case, the court reached into the political process to hand the election to one candidate. Today it reached into the political process to hand unprecedented power to corporations.
The ban on direct corporate spending in elections goes back to the 1907 Tillman Act, which prohibited corporate contributions in federal campaigns (it was assumed to cover independent expenditures, too). In 1947, the Taft-Hartley law made explicit that corporations and unions could not directly spend their treasury funds on electioneering. Congress -– every time it has passed a law to deal with this -– only has strengthened this prohibition.
Why will this matter? Isn’t there a lot of money sloshing around in politics already? Consider Exxon-Mobil. In 2008, its political action committee (PAC) raised about $1 million from its employees and offices. Its profits that year -– which it was legally barred from pouring into politics -– were $45 billion. It was illegal for Exxon to spend that money on elections; now with this decision, it will be legal. Exxon or any other firm could spend Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care, etc.
What can be done to prevent this outcome? Given the huge power of corporations to tilt policy, at the very least it may make sense to pass laws saying that corporations and unions with government contracts cannot spend unlimited sums on campaigns. (Good luck getting that one through a cloture-proof Senate.)
Shareholders, at the very least, should have to approve such political spending (which also would require changes in state or federal law). Possibly, a Constitutional amendment may be needed to restore the law to where it was at 9:50 this morning (and where it had been for the previous century).
One approach is to press for public funding, including an innovative plan to boost the power of small donors by matching the gifts of small donors. It won’t come close to matching the massed funds of corporate interests that will now once again dominate elections -– but it will offer voters and candidates a chance to build an island of workable democracy in a sea of special interest money. And we need myriad other reforms to strengthen our democracy, such as voter registration modernization to assure that every single eligible citizen is registered to vote. To counter the flood of new money, let’s assure there are millions of new voters.