Friday, January 29, 2010

Citizens United Was an Activist Decision

... Despite its defenders arguments to the contrary, it's a deeply political decision that is not driven by either textualism or originalism, and it could change a lot. But it might not change much at all. Large corporations have already found ways to funnel money into political campaigns; I expect the amounts will continue to increase, but that was going to happen anyway. I expect that it will make it easier for corporations and their lobbyists to push right up to the edge of that gray area between "offering financial support" and "offering a bribe". But it's pretty clear from the healthcare debate, when various special interest groups require up-front payoffs to "support" the legislation, that we're well past the point where they were merely supporting candidates whose interests happen to align with theirs, or that they're seeking access to persuade politicians, and in fact they own any number of votes on both sides of the aisle.

Let's take the first possible horrible outcome - a corporation, or a consortium of corporations, decide to bankroll a Senator or Congressman, or even a Presidential candidate, by pouring funds into support for her campaign at a level vastly beyond what their opponents could reasonably raise. Sure, we can imagine a future where this is par for the course - where various special interests overtly back each candidate, perhaps to the point that their outfits look like parodies of NASCAR jumpsuits during campaign appearances. But if the funding is on the record, the first billion dollar baby to run for office may find that there is an enormous public backlash. Also, frankly, it's not that expensive to buy votes "the old fashioned way". In the most overt (and yes, criminal) quid pro quo I know of, the cost of buying a Member of Congress was five cents on the dollar - less if you bought in bulk.

Okay, so what about the scenario where the lobbyist goes to a politician and says, "If you vote against my corporation, we'll dump $20 million into support for a primary challenge or your opponent in the next election." I can already picture the press conference where the politician, in high dudgeon, denounces the company and its threat and calls for an FBI investigation. Would you then want to be the political opponent who "benefits" from the money?

As for foreign-owned and foreign-controlled corporations? Well, there is some danger there under the majority opinion, but I expect that at least on of the Justices (Samuel "Not True" Alito) has some mechanism in mind for limiting their investment in political campaigns once the isssue reaches the court. How that can be done in a fair and sensible matter, dealing with varying levels of foreign interest and control, is something he has yet to spell out - and I believe it will be a much more complex task than he apparently imagines when the issue arises and he votes to grant cert.... No, I'm giving him too much credit. He'll punt. The Citizens United majority will leave it to Congress to write a law addressing the issue of foreign money and then will decline to review the portions that are hard to square with what they wrote.

That's not to say that Citizens United is harmless, or close to it. The decision will make it much harder to reign in lobbying and corporate control of the political process. Of course, that presupposes that a Congressional majority truly wants to reign in special interest money, and....

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