Although everyone seems to be primarily waiting for the U.S. Supreme
Court decision on Obamacare, and much is made of the already announced
decision on the Arizona immigration laws, another decision just made public,
American Traditions Partnership vs. Bullock, a case originating in Montana,
is worthy of note.
The Court has held, 5-4, that the right of corporate and union political
contributions cannot be limited by individual states. It was a restatement
of its 2010 hallmark decision, also 5-4, in Citizens United vs Federal
Communications Commission, in which the principle was first affirmed by
this highest court in the nation.
Much complaining is being made and heard these days by those bewailing
the large amounts of money being put into election campaigns across the
nation. Interestingly, in 2008 when Democrats and Barack Obama had a very
distinct financial advantage over the Republicans and John McCain, most of
these same folks had no problem with Citizens United, especially since the
ruling enabled unlimited contributions from unions, most of whom
contribute their money to Democrats and liberal campaigns. After winning in
2008, President Obama's campaign (which received and spent about twice as
much as did the McCain campaign), the successor 2012 Obama re-election
team freely speculated that it would raise one billion dollars, much more
than any Republican nominee then was perceived capable of raising.
Curiously, few of those now complaining about corporate contributions
had any problem with their former fundraising advantage. (Mr. McCain,
co-sponsor of McCain-Feingold, a bipartisan law limiting campaign
contributions, decided to accept public money for his campaign, which Mr.
Obama did not, thus unilaterally surrendering any hope of matching his
opponent's financial advantage.)
But circumstances in 2012 are quite different. Mr Obama, who has spent his
entire presidency advocating increased taxes for rich persons and large
corporations, and in implementing a great many new regulations for small
and large businesses, is falling far short of his goal of raising a billion dollars.
A recent Supreme Court decision requiring unions to get permission from
their members, in some circumstances, to contribute to political campaigns,
plus the overall shrinking of labor unions nationally, has contributed to the
Obama campaign shortfall. At the same time, the Republican Party and its
presumptive presidential nominee are enjoying significant gains in financial
support nationwide. Democrats were hoping that the Court decision in the
Montana case might reestablish their advantage at the state level.
There is a legal principle, and a public policy principle, involved in these
cases, hypocritical public posturing by some Democrats notwithstanding. That
is the principle that financial political contributions are a form of free speech,
and is protected by the Constitution. The majority of the Court has now
twice held that money contributed to political campaigns is indeed free
I think this majority opinion is clearly the right one, and one that best serves
the nation. But current practice has one important flaw that could be corrected
by legislative/executive branch action. As matters now stand, corporations
and unions can make unlimited contributions to independent political action
committees (PACs) which can then spend the money contributed for political
advertising independent of any candidate's control and without disclosure of
who is providing the money. Any collaboration between such a PAC and the
campaign it helps is strictly forbidden. This results in almost a complete lack
of transparency (knowing who contributed the funds) and accountability
(holding a campaign responsible for ads or other efforts on its behalf.) This
is obviously not good public policy, and definitely not consistent with
This correction to campaign spending was not within the purview of the
Court decision. But it is definitely within the constitutional responsibility of
the executive and legislative branches to enact.
That repair should be the consequence of the Court's decision to uphold this
aspect of free speech, and not the wailing and complaining by those who only
seek political advantage.
Copyright (c) 2012 by Barry Casselman. All rights reserved.