Must Read Editorial: “A Century-Old Principle”

In a must-read editorial published yesterday, The New York Times’s Adam Cohen lays out a clear and compelling account of the historical implications of the Supreme Court’s decision to re-hear the pending and controversial case called Citizens United v. Federal Election Commission. Rather than decide the case this past term, the Court in June ordered that it be re-heard on September 9, and ordered additional briefing suggesting that the Court is on the verge of striking down century-old regulations aimed at keeping corporate money out of elections.

As Cohen aptly explains (and we quote at length, because his point is so well made):
The founders were wary of corporate influence on politics — and their rhetoric sometimes got pretty heated. In an 1816 letter, Thomas Jefferson declared his hope to “crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

This skepticism was enshrined in law in the early 20th century when the nation adopted strict rules banning corporations from contributing to political campaigns. …In 1907, Congress passed the Tillman Act, the first federal law barring corporate campaign contributions. States adopted similar laws.

Since then, Congress has repeatedly ratified the federal ban. In 1925, it folded the Tillman Act into the Federal Corrupt Practices Act. In 1947, it made clear that the ban included not just corporate contributions, but corporate expenditures on campaigns — and that it also applied to labor unions. In the 2002 McCain-Feingold law, Congress once again underscored that corporations cannot contribute to campaigns.

It is inconceivable that Congress would now try to lift the ban. Americans are far too angry at Wall Street and the obvious failure of government regulations. But the Supreme Court has decided to force the question: It took a case, Citizens United v. Federal Election Commission, in which the ban on corporate contributions was not a central issue; told the parties to prepare legal briefs on the ban’s constitutionality; and rushed to put oral arguments on the calendar in September before the new term even starts.
As noted by Cohen, and as we explained here, the Court in Citizens United has taken the highly unusual step of ordering briefing on a much broader constitutional question than that originally presented to the Court. The Court’s decision to re-hear and broaden the scope of this case, coupled with the possibility that the Court will overturn key precedents and strike down a century’s worth of campaign finance regulation, suggests conservative judicial activism and hypocrisy. As Cohen notes,
If the conservative justices strike down the ban, they would be doing many things they disavow. They would be substituting their own views for the will of the people, expressed through Congress. They would be reading rights into the Constitution that are not expressly there, since the Constitution never mentions corporations or their right to speak. And they would be overturning the court’s own precedents.
We couldn’t have said it better ourselves. As CAC explained in its “friend of the court” brief in this case, Congress’s authority to place limits on corporate spending in campaigns is not only a bedrock principle of our government, but is also woven into the fabric of our Constitution via amendments ratified during the Progressive Era. If the conservative justices on the Roberts Court choose to ignore this text and history, they will be guilty not only of unleashing corporate influence on elections — in blatant disregard of the will of Congress, and of the American people – but also of violating their own purported allegiance to upholding our founding document.