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Home / Articles / Views / Danish Plan /  Supreme Court gives McCain-Feingold a thumpin'
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Thursday, January 28,2010

Supreme Court gives McCain-Feingold a thumpin'

By Paul Danish

The Wall Street Journal’s story about last week’s U.S. Supreme Court decision striking down the ban on corporate and union campaign spending in federal elections contained a detail that the New York Times story managed to overlook:

“Although the Supreme Court broke along familiar philosophical lines, the case itself scrambled the ideological deck. The U.S. Chamber of Commerce and the AFL-CIO both urged the court to strike down the provision, as did the American Civil Liberties Union and the National Rifle Association.”

More about that in a moment, but first some background.

The provision in question, a provision of the McCain-Feingold campaign finance act that banned corporations from buying ads directly supporting or attacking candidates in federal elections, was defined as a violation of the First Amendment. A second provision, which banned political action committees from running issue ads that name candidates less than 30 days before a primary or 60 days before a general election, was also struck down on the same grounds. Left intact were provisions banning corporations and unions from directly contributing to candidate campaigns and from directly contributing to political parties (so-called soft money).

As a practical matter, there is less here than meets the eye. Corporations and unions have lots of options for getting their voices and dollars into the political process, including the use of 527 committees.

But the decision still had a lot of liberal Democrats howling like stuck prigs. Rep. Alan Grayson, D-Fla., called it “the worst Supreme Court decision since the Dred Scott case. It leads us all down the road to serfdom.”

Said Sen. Charles Schumer, D-N.Y.: “This opens the floodgates and allows special interest money to overflow our elections and undermine our democracy. The bottom line is, the Supreme Court has just predetermined the winners of next November’s election. It won’t be the Republicans or the Democrats, and it won’t be the American people; it will be corporate America.”

“With a single, disastrous 5-to-4 ruling,” opined The New York Times, “the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.”

However, the roster of those who urged the court to strike down the ban suggests the foregoing concerns are, to say the least, hogwash. The AFL-CIO obviously does not feel that lifting the ban on corporate and union political spending will result in labor being lashed into serfdom. More likely it believes it can increase its own clout if labor can directly spend to support and oppose candidates — and that it can prevail in the marketplace of ideas, if it has access to it, even if it is outspent by business.

By the same token, the ACLU, which knows a thing or two about free speech, does not think the court’s conservative majority is disingenuously waving the flag of the First Amendment. It thinks corporations have as much of a right to support or oppose candidates as does, say, the editorial board of The New York Times.

The New York Times, incidentally, is a publicly traded corporation, and its First Amendment right resides with the corporation, not with the individual journalists who work for it. Why is it that the New York Times Corp. should have First Amendment rights and, say, Whole Foods Corp. should not? (Come to think of it, John Mackey, CEO of Whole Foods, had some pretty creative ideas about health care reform.) For that matter, why should White Wave have been prevented from supporting candidates when Steve Demos still owned it, or Dean Foods, which owns it now? (The fact that Demos is a flighty hippie luddite exploiting people’s fears about genetically modified crops for profit is beside the point. That’s his right, by the grace of God, the Constitution and, now, the Supreme Court of the United States.)

As for the National Rifle Association, like the ACLU, it spends a lot of its time defending constitutional rights — both the Second Amendment and the First Amendment, in its case. Like a host of special-interest organizations, it has nonprofit corporation status.

Under McCain-Feingold, nonprofit corporations are subject to the same restrictions as for-profit ones. That provision was inserted into the law by the late Paul Wellstone, D-Minn., who later said he put it there to silence the NRA.

The NRA spends a lot of its time defending the Second Amendment against folks like Sen. Schumer, who have been trying to destroy it for decades. And when it comes to “disingenuously waving the flag of the First Amendment” it can give you an earful about The New York Times, which has repeatedly refused to print either pro- NRA op-ed pieces or even NRA ads replying to Times anti-gun-ownership editorials.

The biggest argument against allowing corporations and unions to support and oppose candidates is that it will unleash a flood of special interest money into politics. It might, but the Chamber of Commerce, which consists mostly of small businesses, not large ones, has a powerful counter-argument: Free speech isn’t means tested. You don’t have to have a minimum amount of money to speak out, and you don’t get disqualified from speaking for having too much. Even rich liberals should be able to understand that.

The most widely quoted passage in Justice Anthony Kennedy’s opinion contains a point that deserves more attention than it has received: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” he wrote. “This is unlawful.” In other words, it’s not just about a corporation’s or union’s right to speak. It’s about the public’s right to hear.

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