The issue of campaign finance reform is a little bit like a schoolyard shoving match. One side gives a push. The other side pushes back.
On Monday, a group of Michigan legislators responded to a massive thump to the chest delivered earlier this year when the U.S. Supreme Court opened the floodgates to allow unlimited corporate and union spending on political campaigns.
The case in question was Citizens United vs. Federal Election Commission.
That case involved a nonprofit ideological group that used corporate donations to produce an anti-Hillary Clinton documentary that it wanted to broadcast on cable TV though a video-on-demand service while the 2008 presidential primary season was under way. Doing so violated the federal McCain-Feingold campaign finance law that passed in 2002.
In January, the Supreme Court — in a sharply divided 5-4 ruling — declared that limits on "independent expenditures" by corporations and unions violate the First Amendment right to free speech.
In making its decision, the Supreme Court effectively overturned a precedent-setting 1990 case, Austin vs. Michigan Chamber of Commerce. As noted by the nonprofit group OMB Watch, a research and advocacy organization that promotes open government, the Austin ruling held that "restrictions on direct corporate and union spending in campaigns were justified and upheld the government's right to limit corporate expenditures on electoral activity."
In deciding in favor of citizens United, the high court reversed that view. "The Court rejected the argument that corporate money in elections will distort the political debate," OMB Watch reported. "It also found that regulations meant to level the playing field are not enough to justify campaign finance laws that restrict corporate campaign spending."
Corporations and unions can't contribute directly to a candidate's campaign. But, as a result of the new ruling, they can spend unlimited amounts on ads supporting or attacking candidates.
In criticizing the majority opinion authored by Justice Anthony Kennedy, Slate's Richard L. Hansen wrote, "he wrongly assumes that corporations or unions can throw money at public officials without corrupting them. Could a candidate for judicial office, for example, be swayed to rule in favor of a contributor who donated $3 million to an independent campaign to get the candidate elected to the state supreme court?"
Though dealing with federal elections, Hansen expected the ruling to provoke successful challenges to state and local laws restricting campaign activity by deep-pocketed special interests.
What happened this week in Lansing, however, was a different kind of reaction.
According to the group Michigan Common Cause, which helped craft pieces of the legislative package authored by six state House Democrats, the bills would, among other things:
• Require that corporations that make independent campaign expenditures disclose the names and addresses of their top five contributors.
• Require that printed communications, TV and Internet ads include a disclaimer stating they were paid for with corporate funds, as well as the name and photo of the president of the corporation. Radio ads must include a disclaimer read by the president of the corporation.
• Require that corporations receive consent from their shareholders and notify them at least 30 days before making independent campaign expenditures.
• Ban the following groups from making independent campaign expenditures: corporations that receive state grants, tax credits or incentives; corporations that apply for, submit a bid for or obtain a state contract; corporations that have accepted federal bailout money; semi-public corporations, including utility and insurance companies.
• Prohibit foreign and foreign-controlled corporations from making independent campaign expenditures.
• Ban the funneling of corporations' independent campaign expenditures through other sources, including individuals and businesses.
• Penalize shareholders, officers or members of a corporation who knowingly consent to an independent expenditure that violates the Michigan Campaign Finance Act with a civil fine of as much as $1,000.
Rep. Tim Bledsoe (D-Grosse Pointe), the author of one of the pieces of legislation, described the package as being a response "to what I regard as a thoroughly misguided decision that basically gives corporations and unions the opportunity to spend an unlimited amount of money to shape political outcomes."
The proposed laws, he says, can be viewed as a two-pronged attack. The prong dealing with disclosure, he contends, should survive without any legal challenge. As others have noted, the Citizens United decision actually strengthens the requirement that those paying for ads should be identified.
But he predicts that the other prong — which attempts to place restrictions on what types of corporations can participate in electioneering (corporations receiving state grants, for example) — are likely to end up being tested in court if passed into law.
Bledsoe, a former political science professor, also predicts getting these bills passed into law won't be easy. He points to the McCain-Feingold law — which he says got "kicked around Congress for five or six years before getting passed" — as an example of just how difficult enacting campaign finance reform can be.
"Especially in an election year," he says, "I think it will be a huge challenge to get this legislation passed. When you are talking about substantial campaign finance reform legislation, it is usually a multi-year struggle."
But it is clearly an effort that needs to be undertaken, says Christina Kuo, executive director of Michigan Common Cause.
"This legislation is important because of the broad scope of the Citizens United decision that came down from the Supreme Court in January," Kuo says. "That decision left a huge hole in the ability to keep a check on the ability of corporations to influence elections."
Like other critics, she finds it confounding that the high court, when it comes to elections, would grant corporations the same free speech rights as individuals. Sure, individuals have the right to spend as much as they want running ads for or against a particular candidate, but how many individuals have the resources of a billion-dollar corporation at their disposal?
She notes, too, that almost as soon as the Supreme Court handed down its decision, the Michigan Chamber of Commerce began holding workshops to instruct its members on how to take advantage of changes in the law.
Kuo says one thing of particular concern is not just the influence corporations can have on national and state elections, but also on local contests. "What happens if some corporation doesn't like a decision a local city council or planning commission makes?" she asks.
"I think what has really upset a lot of people is the court saying that these corporations have the same First Amendment free speech rights a individuals."
Curt Guyette is Metro Times news editor. Contact him at 313-202-804 or [email protected]
