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Supreme Court ruling could magnify corporate role in US politics

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DANYA NADAR, TRNN: Welcome to The Real News Network. My name is Danya, coming to you from Washington, DC. And joining me today is Mike Doyle, legal affairs correspondent with McClatchy Newspapers. Thanks for joining us, Mike.


NADAR: So the last time we had you on, we were predicting what the Supreme Court would decide on regarding corporate financing of campaign elections, and on Thursday there was the final decision or the ruling. So what do you make of it? And, actually, could you give us the background for our viewers and then tell us what the significance of this ruling is?

DOYLE: Right. The case is called Citizens United vs. Federal Election Commission. The question is whether corporations can be permitted to spend money on political campaigns from their own treasuries. The answer�and it was a surprisingly broad one�on Thursday is that corporations are no longer prohibited from spending their own corporate funds on political campaigns. This overturned several Supreme Court precedents. It opens the door for companies, nonprofit corporations, as well as labor unions, to spend potentially unlimited funds on what are called independent expenditures. These are not donations to candidates; these are contributions that fund ads and so on. It’s a potentially landmark decision, and it’s rooted in the idea that the corporate free-speech rights protected by the First Amendment are more important than the fears that spending leads to political corruption.

NADAR: Okay. And how is this different from PACs, or political action committees?

DOYLE: Political action committees are set up. There are about 4,000 of them at the federal level. They are set up by unions, by interest groups, and by corporations. They aggregate money from individuals, from employees, members of the union, and so on, and then spend that on behalf of the corporate or labor union interests. But it is segregated somehow. Some might think it’s an artificial distinction, but it is nonetheless segregated from the corporate funds. For decades, US political reformers have sought to keep out from the political process the powerful economic interests of corporations, and one of the ways they have done that is to restrict them from their direct spending. So PACs are set up to enable labor unions and corporations to speak politically through the spending the money, but without spending their own direct funds.

NADAR: Through their treasury.

DOYLE: Yes. Now, under the Court’s ruling on Citizens United, political action committees can contribute to candidates and run ads, and corporations and labor unions can run ads. And so there could be a double-barrel shotgun effect, really. It could vastly increase the amount of money going into the political system.

NADAR: So is there a limit of how much individuals or unions can spend in a cap, and versus [inaudible]

DOYLE: There are limits on campaign contributions, that is, money that is contributed to a candidate. There are essentially no limits to what can be spent on the so-called independent expenditures, so that, say if I’m a corporate entity�Exxon, could be the Sierra Club, the National Rifle Association, Bank of America�and I want to support or oppose a candidate for office, under the new Court’s ruling, I could take as much money as I deem appropriate and run advertisements that might say something like “Vote for candidate X” or “Vote against candidate Y,” or something even a little more implicit: “Candidate X is the best man for the job, and voters should keep that in mind when they go to the polls.” So as far as I can tell, there are no limits on the independent expenditures�or, I’m sorry, the contribution limits will remain in place.

NADAR: And in terms of spending directly to a candidate, do you think that this ruling would set a precedent for direct spending?

DOYLE: Sure. Every Supreme Court case is a precedent. It’s the law of the land. As the Court showed Thursday, sometimes those precedents don’t last very long, and it’s in a move that really angered Associate Justice John Paul Stevens, at 89 the oldest of the justices. The Court overturned two precedents, one as recently passed as six years ago. So precedents don’t necessarily last forever. But so long as they have not been overturned, they become the building blocks for another challenge, and it’s very easy to imagine that skeptics of campaign finance restrictions will now take the Citizens United argument and say we should broaden speech rights in terms of contribution limits. Why should there be limits on what people are allowed to give to candidates, whether a company or an individual? So if I were a campaign finance lawyer, particularly if I was skeptical of campaign finance limits, I would be scouring the 54- or 57-page majority opinion by Justice Anthony Kennedy, and identifying the arguments that I can now use for my next attack on the law, the primary law currently being the so-called McCain-Feingold law passed in 2002.

NADAR: So what does this mean for states currently that have regulations regarding campaign election [inaudible]

DOYLE: Well, there are on the order of two dozen states that do have some form of regulations. If a state currently prohibits the corporations from spending on a candidate’s behalf, those are out the door, presumably because the same First Amendment argument applies at that state level. If there are state restrictions on donations to candidates, that is, money going to a candidate instead of to an ad, those should not be affected by the ruling.

NADAR: Okay. So you mentioned earlier that there were some judges that were not happy about the ruling.


NADAR: And the last time you were on our show, you had mentioned that it was not necessarily possible that they would split along partisan lines. And currently it’s very clear that it is a very partisan decision. So what do you make of that?

DOYLE: Shows you what I know. I had thought that this was going to be much more fractured decision than it was and that it would not necessarily be interpretable through the lens of conservative versus liberal. In fact, what happened, Justice Kennedy, writing for the five-member majority, had in his camp the most conservative justices on the Court. Justice Stevens, writing in dissent, was writing on behalf of the foremost liberal or liberal-to-moderate members of the Court. And the beneficiaries of this ruling�well, the Court majority say the beneficiaries will be the American people because there’ll be more robust political dialogue. The immediate beneficiaries will be the companies and the labor unions that want to spend money to influence the political process. And one might say former corporate attorneys such as John Roberts, the chief justice, got their way in protecting the rights of corporations. It is still hard to say any one decision as liberal versus conservative. Is it a conservative decision to overturn precedent and expand, potentially by a vast margin, the amount of money that can be spent in a political campaign? Hard to say where that falls on the traditional conservative-liberal ground. But I would say I and others had thought that the Court was more likely to rule fairly narrowly, not reach so broadly, and maybe do it in a way that was outside of the 5-4 conservative-liberal margin, and the Court proved us wrong.

NADAR: And is there a way for Congress to instill any regulations of this ruling [inaudible]

DOYLE: Potentially. President Barack Obama said immediately afterwards that it was an outrageous ruling. It would lead to, quote, “special interests” playing a special role in the elections�a fairly rich comment from a man who raised hundreds of millions of dollars for his own campaign. Nonetheless, the president said that he would work with Congress on a bipartisan basis to address the issues. It’s unclear what that means. One possibility would be to pass a public financing, where members of Congress, people running for election, would get money from taxpayers in return for self-limiting on their expenditures. That’s again kind of rich for President Obama to push such an idea, since he has opted out of public financing in his own campaign. I don’t see a lot of political appetite for public financing. It tends not to be a very popular idea. Outside that I’m hard-pressed to think exactly what the Congress can do. Congress can’t overturn by legislation�or certainly it’s not in the business of overturning the legislation, what the Court has done. The First Amendment has spoken in this case, as translated by the seers of the Supreme Court. Hard to know what Congress is going to do about it. And in some ways, Congress may be the ultimate beneficiary, as incumbents are on the receiving end of corporations’ spending.

NADAR: So one last question. So in terms of transparency, under a PAC it was pretty clear that you’d be able to see who was financing. And so, under this ruling, the First Amendment ruling, would it be possible to be able to identify who the corporations are and where they’re from, and where they’re funding from as well?

DOYLE: Yes and no. The Court explicitly upheld disclosure requirements that are part of the law; explicitly they did not strike down the requirement that corporations identify themselves and their independent expenditures. So in theory, at least, a company that reaches into its treasury to fund an ad will be identified. Now, of course, there are ways around that. Maybe its company deems it in its best interest not to have its fingerprints on an ad campaign. In theory, that company could take money, contribute to an aggregating group, the Chamber of Congress, or a great trade group of some kind, and that money is passed through to fund ad campaigns. So, in theory, disclosure requirements will remain, but the American public will still be able to know who’s giving the money. But in practice, there’s probably going to be a fair number of secrets kept.

NADAR: And do they have to be American corporations or based in America?

DOYLE: Yes. The current law, untouched by this ruling, prohibits foreign nationals and foreign corporations from contributing. A domestic US subsidiary is permitted to contribute; they will still be permitted. And under this ruling, a domestic US subsidiary or foreign corporation can give now from its own corporate treasuries, won’t have to work through a political action committee.

NADAR: Thanks for joining us, Mike.

DOYLE: My pleasure.

NADAR: And thank you for joining us at The Real News Network.

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Michael Doyle covers the U.S. Supreme Court for McClatchy Newspapers, and writes for The Fresno Bee, The Modesto Bee and the Merced Sun-Star. He also writes Suits and Sentences, the McClatchy legal affairs blog. He joined the McClatchy Washington Bureau in 1988. He's a graduate of Oberlin College, and earned a master of studies in law from Yale Law School, where he was a Knight Journalism Fellow.