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Supreme Court Eases Campaign Finance Curbs

MADELEINE BRAND, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Madeleine Brand in California.

MELISSA BLOCK, host:

And I'm Melissa Block in Washington, where today, the Supreme Court issued a major and long-awaited ruling on campaign finance. By a five-to-four vote, the court swept aside the century-old ban on corporate spending in elections. The decision potentially transforms the influence of big money in government.

BRAND: It leaves corporations free to spend unlimited amounts of shareholder money to influence elections. And it leaves unions free to do the same with their members' money.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Since 1907, the nation's campaigning finance laws have, for all practical purposes, banned corporate spending on candidate elections. In 1947, the ban was extended to unions and in 2002, Congress passed the McCain-Feingold Law to plug loopholes that had emerged over the years. One provision banned broadcasting a candidate ad 30 days before an election if it was financed with corporate funds. The Supreme Court upheld the law seven years ago citing earlier rulings on corporate spending, but today a decidedly more conservative court with two new Bush appointees now in the mix reversed that ruling.

The decision came in a case brought by a conservative nonprofit group that made a film attacking Hillary Clinton and wanted to run it in a day shortly before the presidential primary campaign. The court agreed today that the film was an attack ad, not an issue ad. But it says that the group should have been able to run the ad as it wished. Writing for the five-justice majority, Justice Anthony Kennedy acknowledged the longtime ban on corporate spending, but said it is censorship that is vast in its reach and that it should not have been upheld by the court previously.

When government seeks to use its full power to command where a person may get his or her information, said Kennedy, it uses censorship to control thought. The First Amendment right of free speech confirms the freedom to think for ourselves. Joining Kennedy in the majority were Chief Justice John Roberts and Justices Scalia, Alito and Thomas. Thomas was the lone dissenter from the second part of Kennedy's opinion upholding laws that mandate disclosure of information about who pays for political ads.

Writing for the four dissenters, Justice John Paul Stevens called the court's decision a radical departure from 100 years of law. Speaking from the bench in a halting voice, the 89-year-old Stevens accused the majority of ignoring thousands of pages of congressionally compiled evidence about the corruptive influence of corporate money in politics. And he blasted the majority for imposing what he called its own agenda on public policy while ignoring the branch of government charged with making such policy choices: Congress. Nothing in the current law, he insisted, bans corporations from expressing an opinion.

In this case, the nonprofit organization that wanted to use corporate money to fund its ad campaign already had a political action committee of regulated and legal donor funds that could have been used right up to Election Day to fund TV ads. Instead, it wanted to use corporate general treasury funds and for the first time today, the Supreme Court said it could. Joining Stevens in dissent were Justices Ginsburg, Breyer and Sotomayor. Reaction to the decision was fast and furious. President Obama, in a statement, condemned it as a victory for Wall Street, big banks, big oil, health insurance companies and other powerful interests.

But Senate Republican Leader Mitch McConnell praised the court for quote "restoring the First Amendment rights of corporations and unions." Whether they loved it or hated it, campaign law experts called the decision an earthquake in First Amendment law. Here's Rick Hasen of Loyola Law School, who writes a blog on campaign law.

Professor RICK HASEN (Law, Loyola Law School): It is transformative. It's going to have major effects not only on federal elections, but in state and local elections, including judicial elections across the country. Much more money is going to flow into those elections. That raises concerns about both corruption and inequality.

TOTENBERG: Indeed, 24 states also have corporate spending bans that likely now will be struck down. Hasen, like many other critics of today's ruling, accused the court majority of substituting its judgment for that of Congress.

Prof. HASEN: This is an activist court. It reached out and grabbed this case and used it as a vehicle for transforming First Amendment law.

TOTENBERG: For campaign reformers, today's ruling was a doomsday. Fred Wertheimer has helped craft campaign reform legislation since Watergate.

Mr. FRED WERTHEIMER (Campaign Reform Advocate): This is a disaster for the American people. It's going to unleash unprecedented amounts of corporate influence seeking money on elections. It's going to create unprecedented opportunities for corporate corruption of government decisions. It is a change in the character of our elections and our democracy.

TOTENBERG: Wertheimer said that corporations may now spend $5 or $10 million, for example, to defeat just one or two members of Congress hostile to their interest, and that that will be enough to send a message to the others.

Mr. WERTHEIMER: Now what that does is create fear among all members and it would not take more than a couple of examples of corporations spending enormous amounts to defeat a member who voted wrong to affect the entire psyche of the congressional decision-making process.

TOTENBERG: Jan Baran, who has brought many of the cases challenging campaign regulations in recent decades, says campaign reformers are hyperventilating.

Mr. JAN BARAN (Election Lawyer): It is true that unions and corporations under this opinion will be able to pool their money or spend their money and it could affect an election, but the way it's going to affect election is that it's going to express certain opinions about candidates. And as the court noted today, that's what the First Amendment protects.

TOTENBERG: Brad Smith, another critic of campaign restrictions, agrees.

Mr. BRAD SMITH: At a federal level, I think there is no reason to believe that we're going to see the kind of outpouring that some of the more histrionic horror stories have set. We expect to see more speech. We think that's a good thing, but the idea that corporations are going to devote 10 percent of their profits or something like that to make independent political expenditures is just absurd.

TOTENBERG: So, in terms of the political landscape, who benefits from today's ruling? Most experts including those who applaud the ruling say Republicans will benefit most. Again, Jan Baran.

Mr. BARAN: The potential beneficiary here would be the party or the candidates who are perceived as being more beneficial to free enterprise and business.

TOTENBERG: And Loyola Law School's Rick Hasen.

Prof. HASEN: Republicans are going to benefit on the presidential level because I'm sure they were scratching their heads about how they could match the Obama $745 million campaign fundraising juggernaut that he had in 2008. So now they've got one way to try and equalize things.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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