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Corporate "personhood" and election financing

Will Supreme Court decide to allow more corporate money in elections?


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Story Transcript

PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network, coming to you today from Washington, DC. We are in our studio at the McClatchy Newspaper offices, and we’re now joined by Mike Doyle. He covers legal affairs for the McClatchy papers. Thanks for joining us.


JAY: The Supreme Court, over last hundred years or more, has a series of decisions that considers corporations to have essentially the same rights as people. So that includes the right to free speech. So what’s in dispute at the Supreme Court [inaudible] decision that’s expected sometime soon is whether or not that right of free speech of corporations can be limited in the way that the law could limit their right to spend money on mostly television advertising during an election campaign, and is that constitutional or not. So is that the gist of it? And if so, what’s happening?

DOYLE: Well, that’s essentially it. The case is called Citizens United vs. Federal Election Commission. Citizens United is a interest group of conservative persuasion that got into this case when it made a 90-minute movie attacking Hillary Rodham Clinton in the lead-up to the Democratic primary election. That was considered in essence an advertisement and subject to the campaign finance laws that prohibit it being aired a certain length of time prior to the election, and required the disclosure of the people who funded it. Citizens United challenged those regulations. Argument was held in March. The Supreme Court in a very unusual decision said, "Come back. We’re going to—."

JAY: Just to back up, they challenged—they were told they had to disclose who had paid for the ad, and they challenged this?

DOYLE: In essence. The challenge came before they were given the directive to disclose. There was a preemptive challenge, in essence. The argument was held on a fairly narrow case in the spring. The Supreme Court said, in very unusual move, "Come back. We’ll now look at the broader case"—and this is the one that you were more referring to. The broader case is: are current restrictions on corporate campaign expenditures a violation of free-speech rights? Corporations enjoy the right to speak politically. Part of speaking politically involves spending money on campaigns, running ads, and so on. Those are restricted right now under both state and federal law. The Court in September heard the argument in the case that will soon be decided on whether those state and federal restrictions are unconstitutional or not.

JAY: So what’s at stake here now is, if a corporation can now give money through one of these PACs [political action committees] and kind of launder the money, and then the PAC does the TV advertising,—

DOYLE: That’s right.

JAY: —if all these regulations are overturned, they’ll now be able to take money, unlimited amounts of money, from their treasuries directly and just go buy ads. So if AT&T thinks there should be something to do with the federal communications legislation, they can go advertise for it right in the midst of an election campaign that could sway voters between one candidate or another.

DOYLE: Yeah. We should say one thing this case is not about are campaign contributions to candidates. This is not about—.

JAY: ‘Cause that’s already limited by other legislation.

DOYLE: And it’s not under challenge. This is not about a donation to a candidate; it’s about what is called an "independent expenditure". Currently the law is corporations and labor unions can set up a political action committee, a PAC, put money into that, and then the PACs can finance ads and so on, but they’re prohibited, corporations and unions, from directly financing from their own treasury those campaign ads. If the Court broadly strikes down current precedent, theoretically that could result in AT&T or any corporations from spending freely from its own treasuries. And we should say by "corporations" we mean not just for-profit corporations or non-profit corporations as well, Sierra Club, the National—.

JAY: Or unions.

DOYLE: Or unions, the National Rifle Association, the Sierra Club, all of those will be affected by this ruling as well. But there’s no guarantee it’ll be a broad ruling; might be much narrower than that.

JAY: Okay. So if in fact corporations and unions and others are already finding ways around the current legislation by using these political action committees, why is this case considered so significant?

DOYLE: Well, that’s a really great question, because the PACs have proliferated. There are thousands of them that are part and parcel of the political process right now. And corporations seem to have no trouble financing their political activities through them. There is a cost to them, it takes time, administrative resources, and there’s friction involved in setting up. And so there’s an impediment to speech, and it would be easier for corporations to spend from their corporate treasuries directly. And I think—so, on the one hand, it would be administratively easier for them to spend money directly, and also that there’s a principle involved, which is: why should I think—from the perspective of the corporations, they say, "Why should we be required to speak through the puppet instead of directly?"

JAY: Now let’s back up one step. The film that started all this, the anti-Hillary Clinton film, wasn’t that done through a PAC?

DOYLE: No, it was not a PAC. Citizens United, which produced the movie, is—it’s a nonprofit corporation.

JAY: So it’s in theory bound by the—not in theory. It’s bound by the current regulations the same way big corporation would be.

DOYLE: It is. And that’s an interesting distinction. Citizens United or some others observing the case point out the Court may choose to distinguish between the for-profit corporations, the AT&T’s of the world that have a vested financial interest in a political campaign, and a partisan but non-profit corporation like Citizens United.

JAY: ‘Cause then there’d be nothing to stop the corporation from donating to the nonprofit, unless there’s something specific.

DOYLE: Well, there you get into the issue of people finding loopholes on whatever the regulations are. But, theoretically, the Court could decide to rule more narrowly in this case and say, "We’re not going to overturn decades of regulations on corporate spending. However, we will make it somewhat easier for nonprofit corporations to spend money."

JAY: Now, if they do overturn decades of legislation, what’s the significance of it? What does this lead to?

DOYLE: Well, the significance of it is that it will allow easier and greater spending on campaigns. There’s already been an explosion in campaign spending in recent years, and this would potentially allow much more money to be spent much more freely.

JAY: So other courts who have in the future other cases to do with campaign finance, the fact that the Court, if they overturn this legislation, they can be seen also to be leaning towards more opening up, and that might create a kind of mood—.

DOYLE: It could. It certainly would be a signal to the lower courts, not just an act of technical precedent that they would be required to follow.

JAY: One of the best-known moments when the Court had to decide something to do with elections, obviously, was George Bush’s election in 2000, where the Court split right along partisan lines, and it was kind of a revealing moment to just how partisan the Supreme Court can get. How partisan is this issue?

DOYLE: This is not, I would say, a truly partisan issue so much as it is—it’s a very confusing issue for the Court. I would expect a decision along the lines of a three-two, three-one decision where justices will be joining in part and dissenting in part, and it will become difficult to fully understand the implications and the holding and also fully understand the factions they fall into. So I would not say this is going to be an easily understandable partisan divide.

JAY: If they do overturn current legislation, it could open up even more room for money to influence elections.

DOYLE: Well, that’s the argument for those, including the Federal Election Commission, that seek to uphold the current law, the argument by the FEC represented by the Obama administration is that there is enough money already in the political process. The danger is not only that the contributors and the spenders will have greater influence, but they will be perceived as having greater influence and will serve to undermine public confidence in the electoral system. So the corruption and the appearance of corruption are on the minds of those who want to continue to regulate the spending, and in this case that is the Obama administration.

JAY: Thanks for joining us. And thank you for joining us on The Real News Network.