If you love the Iraq war, global warming and free trade, gosh, have I got great news for you. This week the US Supreme Court heard additional arguments in a case concerning Hillary: The Movie, a notorious anti-Clinton documentary that was set for release during last year’s Presidential race. The film’s producer, an organization called Citizens United, was prohibited from broadcasting the film because their funding sources included corporate contributions, and broadcasting the film was thus deemed to be a form of corporate-backed campaigning that is prohibited under campaign finance law.
The conservative-dominated Court was expected to put that prohibition under serious scrutiny, but the surprise in this week’s hearings was the breadth of their inquiry. In the words of The New York Times, “the conservative justices who spoke showed a disdain for both Congress’s laws and for the court’s own prior rulings.”
The US Supreme Court is historically reluctant to re-examine its own past precedents; it’s highly unusual, though not unheard of, for the court to overturn decisions that the Court has previously reached. (Overruling lower courts is another matter, of course; that’s what the Supreme Court is for.) In a situation like the current Clinton case, the typical path is for the Court to rule on the issue at hand by focusing on relatively narrow and specific grounds, without re-opening past decisions.
Despite this tradition, the Court’s conservative justices indicated that they may indeed be up for revisiting the Court’s past decisions upholding campaign finance laws. At issue is the question of whether corporate contributions or corporate-backed campaigning is a form of political speech that has First Amendment protections; a century of legislation and court decisions stretching back to 1907 has established limits on campaign spending as crucial to free and fair elections. While the Court had been expected to rule in favor of the producers’ right to broadcast, this week’s arguments suggested that they may go much further, possibly overruling longstanding decisions that limited corporate financing of elections in order to prevent private companies from virtually guaranteeing election results.
The impact of such a decision would be significant — reaching not just across the 49th parallel but worldwide. So far, the Canadian media has failed to flag what’s at stake for our neighbours, ourselves and the rest of the world if the Roberts Court strikes down US campaign finance laws. As NPR reported, campaign finance watchdogs foresee a massive change in US elections if the Court goes for a broad ruling:
“It’s a disaster for democracy,” says campaign reform advocate Fred Wertheimer. “It puts corporate money in the driver’s seat. It will unleash amounts of money in campaigns that we have never seen before.”
No wonder commentators are concerned that this is “a case that, if decided wrongly, could surrender control of our democracy to corporate interests” and that “elections could be swamped by special-interest money.” Of course, that analysis depends on subscribing to a skeptical view of the role of corporate interests in politics, as The Atlantic points out:
If moneyed interests are inherently corrupting, this is bad news. If they’re not — and they’re just exercising their legitimate speech rights — this is thrilling. Here is where the authors of BCRA [aka the McCain-Feingold campaign finance law] are at a disadvantage: the campaign finance laws have gotten so cumbersome that even proponents of regulation in general are anxious about the law’s constitutionality and feasibility.
Well, colour me liberal, but I fall on the side of skepticism. I don’t think it was a coincidence that the US got into a war in the petroleum-rich Middle East while the White House was in the hands of a couple of oil industry millionaires, any more than it seems like a coincidence that the current US healthcare debate is being successfully reframed by the insurance industry. Corporate resources mean that corporate interests cast a long shadow in US politics (as elsewhere), and as cumbersome as they may be, campaign finance laws are the primary force constraining those dollars from exerting even more influence.
I’d love to think that a Court ruling that unleashes a torrent of corporate-backed campaigning could trigger a grassroots backlash, a rejection of the dollars-for-ads-for-votes dynamic that seems to turn cash into Congressional seats. But history suggests that voters are readily influenced by advertising and other forms of campaign spending. It would be all too easy for a company lobbyist to make good on the threat to defeat any Congressional representative who opposed (or supported) a particular piece of legislation.
So if you enjoyed the Bush years, you’ll love what the 2010 and 2012 elections would bring to American and the world in the absence of any campaign finance restrictions. Environmental regulation, health and safety laws, labour regulations — they’d all be on the table for corporate rewriting. And a world in which the US government acts unreservedly as an agent for its leading corporations is a world that is more dangerous for all of us.
Sadly, Canadians will have little say in that outcome, despite its potential impact. Comfort yourself with the knowledge that America voters have no more control than we do: it likely comes down to the single vote of Chief Justice Roberts, though we won’t know the outcome until October at the earliest. Meanwhile, all we can do is wait and watch…though we’ll have to do our watching via American media.