The End (For Now) Of Campaign Finance Reform

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The Supreme Court's 183-page judicially-active decision Thursday on campaign finance reform marks a clear end to one phase in the long legal battle over which constitutional protections are to be afforded corporate speech in the political realm. And the epic ruling-- quarterbacked by a Reagan-appointee, anchored by the Court's four further right-side tackles-- no doubt marks the beginning of a new struggle between right and left, corporate and individual, government and the governed, which strikes at the core of our modern-day capitalistic democracy.

One question for today is as simple to phrase as it has proven difficult to answer: If our nation's top judges, constitutionally insulated as they are from the political process, would not allow federal politicians to try to stop the tapflow of money into their own political campaigns and causes, who will? If five Justices say that money equals speech and that corporations equal people, who is going to say otherwise and make it it stick?  Who, indeed, is going to smudge the direct line between money's influence in Washington and Washington's inability to solve the nation's problems?

The media certaintly won't ride to the rescue of the hundred million or so Americans who see the consequences of money in politics--attack ads, lobbyists, desultory legislation, porous administrative oversight--as a patently obvious bad practice that must be ended for good governance to flourish. Television, radio and online outlets stand to earn tens of millions of dollars in new advertising revenue from corporations and unions in the run-up to the 2010 mid-term elections alone. Even the legendary Floyd Abrams, who 40 years ago once bravely (and successfully) defended a newspaper against the might of government in the Pentagon Papers case, shilled for the plaintiffs in Citizens United. A hero to many for over a generation, Abrams now is all for protecting the rights of corporations to use media venues to slander candidates and causes. 

Many in academia apparently don't get it, either. "There is no evidence that stricter campaign finance rules reduce corruption or raise positive assessments of government," Kenneth Mayer, a professor of political science at the University of Wisconsin, Madison, told The New York Times. "It seems like such an obvious relationship but it has proven impossible to prove." Impossible to prove, evidently, despite the clear and compelling evidence we see with our own eyes: political gridlock, inane candidates, lobbying excesses, pork. How much money did Big Pharma pour into the coffers of Congress during the health care debate? How much came in from the other side? Anyone else out there believe that this money--over a million a day for months--shaped the endless and now apparently futile debate as much as politics?  

The "no-evidence" argument also fails because the "stricter" campaign rules people keep talking about--the ones implemented following the Watergate scandal--obviously weren't strict enough (or enforced enough, or observed enough). It's not, as the Supreme Court just declared, that they went too far. It's that they didn't go far enough. That's just one of the many ironies involved in the Citizens United result: the law it upended didn't have nearly the teeth nor the bite it needed. The Bipartisan Campaign Reform Act (McCain-Feingold) was always a palty solution to a big problem; a gray substitute for the sort of reform that's truly needed. And even its half-hearted remedies couldn't withstand Washington's self-perpetuating grip upon the levers of power.  

A few years ago, the Court limited its span in FEC v. Wisconsin Right to LifeLast week, the Justices carved out a huge chunk of it. Barring some extraordinary (and imminent) change in personnel on the Court, the constitutional interpretation offered by the majority in Citizens United will be the law of the land for decades. It's a high hurdle that did not exist when our legislators gave us McCain-Feingold. Why in the world should we expect anything better this time out? Sen. McCain himself understands this. Harvard Law professor Laurence Tribe may not.

So long as money equals speech and corporations and unions are considered people, so long as there are Roberts and Scalia and Thomas and Alito and Kennedy in black robes, there can be no meaningful campaign finance reform. Which means we are going to continue to get for the foreseeable future all the sleazy campaign advertisements, all the dark lobbying influences, and all the addled governance we deserve.

Photo credit: borman818/flickr

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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