Questioning Authority caught up with Chris Pyle, Class of 1926 Professor of Politics and Constitutional law expert, to ask him about the recent 5-4 Supreme Court decision striking down limits on “soft money” contributions by corporations and unions to independent groups that produce publications and videos to influence elections.
QA: Could you fill us in on the facts of the case that led to this decision?
CP: At issue were the FEC’s attempts to sanction the producers of Hillary—The Movie, who accepted corporate money to make a 90-minute movie for television savaging Mrs. Clinton’s record and character during the presidential primary in 2008. The American Civil Liberties Union urged the Court not to strike down limits on “soft money” but simply hold that Congress did not intend, in passing it, to limit that sort of political expression. However, a conservative Republican majority, led by Justice Anthony Kennedy, voided the entire provision, and, in the process, opened itself to charges of “judicial activism” and political partisanship.
QA: Critics are predicting that this decision will give giant corporations an even greater say in politics, influencing money-hungry candidates and drowning out the advocates of “the public interest.” Is this true?
CP: Probably, and we already have the best government that large amounts of money can buy. Health insurance companies would not be spending hundreds of millions of dollars to influence President Obama’s health care bill if they didn’t expect a return on their investment. Former Justice Sandra Day O’Connor is particularly worried that this decision will allow big donors to select state court judges favorable to their interests. Obama is worried about an influx of foreign money, although that prohibition still stands. Meanwhile, the need to raise millions of dollars for political campaigns has turned most members of Congress into part-time legislators who are too busy raising money to actually read bills.
QA: But why should giant corporations have the same free speech rights as individuals?
CP: The problem is the effect of money in politics, not whether the donors happen to hold corporate charters. The New York Times is a for-profit corporation. Congress can tax it equally with other companies, but can’t deny its right to endorse candidates. As a tax-exempt corporation, Mount Holyoke College can’t endorse candidates, but it can lobby Congress for a student loan program. MoveOn.org is a corporation; so, too, is Michael Moore.
Courts have made it clear that Congress can override the First Amendment rights of corporations or individuals, but only when it has a “compelling governmental interest” and uses the “least restrictive means” to achieve that interest. The government has at least four interests in regulating campaign contributions: to combat corruption, equalize voices, curb the distorting effect of huge influxes of money, and to protect the interests of shareholders (and perhaps union members) from having their money used to support candidates or messages they abhor.
The challenge is to write laws that actually promote these interests without unduly curbing free expression. Congress has already passed criminal laws against corruption, but campaign contributions can corrupt the process without offering bribes. Congress has experimented with “the fairness doctrine” and free air time for candidates, but without much success. It has tried to level the playing field, at least in presidential elections, through public funding. John McCain agreed, but Barack Obama refused. Congress can require candidates to disclose who gives how much to their campaigns. Unfortunately, most voters don’t care to know who is backing which candidate or party, directly or indirectly. They—especially the inattentive swing voters who decide most elections—would rather know if the candidate has straight teeth or flat abs.
QA: Barack Obama has called upon Congress to pass legislation to reverse the effect of the Supreme Court’s opinion. How successful is that likely to be?
CP: If it were easy, Congress would have done it. Congress is a partisan body; its members don’t want to be elected in a fair fight. They want to raise so much money that no one will ever dare to challenge them, in the general election or in the primary. Democratic voters might be happy to curb corporate contributions, because corporations tend to favor Republicans. However, most Democratic politicians depend on corporate donors too, even in primaries when their opponents are Democrats. Republicans are always pleased to curb union contributions, because unions usually favor Democrats. But politicians of both parties agree: they will not vote for any law that fails to give them an advantage over their opponents. Congress is a conspiracy to re-elect incumbents. Its members would rather beg for money or trim their beliefs, if that is what it takes to get elected. Nor are rich senators and congressmen likely to vote for legislation that would bar them from drawing upon their private fortunes, when necessary, “to get their message out.”
QA: You are not very encouraging about the prospects for reform, are you?
CP: Nope. Members of Congress are not likely to curb the amount of money that their friends can give to “independent” movie producers who want to trash their opponents. However, most members do favor limits on the size of contributions. They don’t want to be held hostage to big donors when they can avoid it. Smaller donors are easier to betray in a fit of principle, because they are more easily replaced. Congress could also experiment with reducing the cost of television time, but that may just give voters more vacuous ads to watch. Meanwhile, the Internet is giving insurgents a way to generate millions in small donations overnight, as both Barack Obama and Scott Brown proved in their most recent elections.