Editorial memo by:
Public Campaign and Common Cause

A U.S. Supreme Court decision in Citizens United v. Federal Election Commission (FEC) could be announced as early as Monday, and if the Court rules as expected, the decision would expand the role of independent spending in federal elections. In Citizens United vs. FEC – a case that originally challenged provisions in the Bipartisan Campaign Reform Act (BCRA) that limited outside groups’ spending and raised the question of whether that spending should also apply to pay-per-view movies – the Supreme Court is poised to overreach and allow a new avenue for corporations to spend money on political campaigns.

Making a Bad Situation Worse

Money already plays too much of a role in politics and an adverse decision will only exacerbate the problem. Exhibit A is the ongoing health care debate that has now moved from the U.S. House of Representatives to the Senate. Health care interests have already made $34.7 million in campaign donations this year to members and committees of both parties in order to protect their interests and maintain the status quo. If the U.S. Supreme Court gives its approval to more corporate influence in politics, members of Congress will be forced to raise even more money to respond to potentially new attacks while looking over their shoulders before they cast votes to ensure they are not triggering a well-funded corporate campaign against them.

Possible Outcomes in Citizens United

Court watchers and experts estimate that the U.S. Supreme Court has a one-vote majority in support of ending some restrictions on corporate and union spending. Such a decision would come as no surprise, as the Court’s conservative majority continues to steadily move towards deregulating campaign contributions and spending limits, following the path of its recent Wisconsin Right to Life (2007) and Davis (2008) decisions. Few believe the court will decide this case on narrow grounds. The Justices are likely to strike down portions of the Bipartisan Campaign Reform Act of 2002, or reach back and invite direct challenges to portions of laws that prohibited corporate and union electioneering that were passed in 1907 and 1947.

Policy Options for Dealing with Citizens United

If the Court sides with the plaintiff, an already untenable situation will be made worse. Some have made the case that defensive measures should be enacted. Some are recommending shareholder approval measures that would require affirmative votes of the shareholders before a corporation could engage in election spending. Others suggest simply clarifying the laws that get invalidated. Still others suggest increasing contribution limits, which would further exacerbate the problem and would take us in the precise opposite direction than we need to go.

The most comprehensive option available would be to embrace a small donor/public funding of elections model that is outlined in the Fair Elections Now Act (S. 752, H.R.1826). This bill would empower grassroots campaigns and give candidates the option to run highly competitive races without relying on wealthy special interests. The incentives in this model would be to vastly expand the donor base available to candidates, increasing their capacity to compete with outside money in a post-Citizens United environment.

Sponsored by Sen. Dick Durbin (D-Ill.) and Reps. John Larson (D-Conn.) and Walter Jones (R-N.C.) the bicameral legislation has 114 cosponsors in the House. In addition, a broad coalition of issue and constituency groups is backing the legislation.

The Fair Elections Now Act has momentum

A decision for the plaintiffs in Citizens United will make elected officials feel compelled to spend even more time raising money, distracting them from the pressing issues of the day. Fear of political reprisal for unpopular votes could expand conflicts of interest and further undermine our confidence that they are acting in our interest.

With this in mind, the Fair Elections Now Act will be an even more attractive option to members of Congress who want off of the fundraising treadmill in the wake of a bad decision in Citizens United. Without a strong, voluntary public financing of elections system, candidates will have no choice but to continue to rely on contributions from people and corporations with business before them.

For more information on the Fair Elections Now Act please visit www.fairelectionsnow.org.

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