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The upside of the Supreme Court's upsetting new decision

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I pop into this segment at about the nine-minute mark, and make a sort of strange argument on the Supreme Court's "corporations are people, too!" ruling. I'm optimistic about it. This ruling managed to offend common decency while being probably irrelevant from a campaigning standpoint. It's true that McCain-Feingold stopped corporations from running unlimited ads saying "defeat puppy-killer Evan Bayh." But they could run unlimited "issue education" ads demanding that people "call Evan Bayh and tell him that killing puppies is not okay."

To put this another way, would anyone have said last week that McCain-Feingold has been particularly effective at blunting corporate influence in the political system?

That's where the appalling nature of the decision comes into play. Glenn Greenwald is an actual constitutional lawyer, and he says this decision might be correct on the merits. I'm in no position to argue with him. But it's definitely a shocking articulation of our system's vulnerability to corporate capture. That might refocus attention on campaign finance reform and convince people to move towards the policies that seem both constitutional and effective.

Dick Durbin's got some good ideas on that score, as does Mark Schmitt. The basic insight is that it's constitutionally dicey to limit speech, but it's fine to amplify it. So you develop a system where small donations are multiplied with public money. In Durbin's bill, House candidates who raise $50,000 in donations of $100 or less would be eligible for $900,000 in public funds. You make it easier, in other words, to run without corporate money, as opposed to continually trying to convince the court to make it impossible to run with it.

By Ezra Klein  |  January 25, 2010; 2:19 PM ET
Categories:  Legal  
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"To put this another way, would anyone have said last week that McCain-Feingold has been particularly effective at blunting corporate influence in the political system?"

No. Indeed, McCain-Feingold, if it did any blunting at all, blunted the ability of upstarts to challenge incumbent politician as--unsurprisingly, given the folks who wrote and passed the law--it did a lot more to limit political challengers of incumbent politicians than it did to get the money out of politics.

Unfortunately, I suspect that any Campaign Finance Reform law will have to favor the incumbent politicians who will be voting for it, or it will never pass. Why would they want to give an unknown challenger equal footing with them, when they can just call a press conference or stage a town hall meeting to get their talking points out.

Posted by: Kevin_Willis | January 25, 2010 2:31 PM | Report abuse

Worth noting is that Durbin's bill (Fair Elections Now Act) actually has numerous sponsors from both parties in both houses. At this point, this really is *the* cause that progressives should get behind over the next several months, insofar as it is both a fundamentally important issue and has the potential to pass even in this broken Congress.

Posted by: RyanD1 | January 25, 2010 2:35 PM | Report abuse

"You make it easier, in other words, to run without corporate money, as opposed to continually trying to convince the court to make it impossible to run with it."

I'm sure I'm missing something, but the more I think about this, it doesn't sound like a bad strategy.

Posted by: Kevin_Willis | January 25, 2010 2:43 PM | Report abuse

The elusive point is that the ACLU (for example) is a corporation, as is Center For American Progress Foundation, etc. The ACLU, not noted as a friend of big business, was a leading proponent of the Court's decision.

Prior to the Court's ruling, it was not acceptable for the ACLU (for example) to speak in a way which was not to the liking of the FEC, but it was acceptable for the Foundation to speak in just about any way it desired. The playing field was far from level; in fact, corporations were encouraged to launder campaign sponsorship funds through PACs.

Durbin's proposal is not much of an improvement, as the only thing it can ultimately do (constitutionally) is to require corporations to write smaller checks more frequently: freedom to assemble seems to guarantee every citizen the right to freely join his money with that of others through foundations, corporations, and corporations known as unions.

Posted by: rmgregory | January 25, 2010 3:00 PM | Report abuse

Ezra, you are trying really hard to be intellectual on this issue, but you just can't see the forest through the trees.

This is a disaster.

Corporate money is going to overwhelm all other opinions.

Posted by: Lomillialor | January 25, 2010 3:01 PM | Report abuse


Moreover, given that the media is the greatest beneficiary of this USSC ruling, it is no surprise that you advocate this ruling. After all, you're getting paid by one of the very companies that will benefit most.

Posted by: Lomillialor | January 25, 2010 3:07 PM | Report abuse

Again, I note the irony of Ezra Klein and Rachel Maddow bemoaning the influence of corporate money on a network owned by the 12th largest corporation in the world. Look, if corporations don't have 1st amendment rights, congress could pass a law saying no corporation or its employees (in the scope of their employment) can negatively comment on any elected official; or for that matter any Republican official; no newspaper can endorse a candidate within 60 days of an election etc. CFRA was a 1st Amendment abomination, both overbroad (bans the Sierra Club, a non-profit corporation, from advocating environmental issues close to an election) and underbroad (allows Keith Olberman and Glenn Beck to campaign all they want, but Citizens Against Hillary are not allowed to). The ruling was the right one, and it amazes me the leftists fail to see that taking rights away from corporations gives the government unfettered control to regulate a lot of vital speech (ever heard of the Corporation for Public Broadcasting? THe New York Times, Inc.? WP, Inc. (now Kaplan or something, but you get my point.)

Posted by: sgaliger | January 25, 2010 3:30 PM | Report abuse

I can't wait until the Chinese communist party starts running adds on behalf of free trade candidates.

Posted by: luko | January 25, 2010 3:30 PM | Report abuse

Ultimately, I think increased public financing is key here.

I'm not going to wade through the seven hundred comments, but the Greenwald article - well, he has his own absolutist political position, and so he lawyered for it rather than try to explain things.

The whole first part of his article, about how the First Amendment has never been outcome-dependent, is complete hogwash. Almost the entire First Amendment boils down to "is the thing the government wants to prohibit really bad?" and "did the government overreact in regulating it?" (Otherwise, you could yell fire in a crowded theater, donation caps would be prohibited, and the government couldn't use zoning laws to keep nudie bars from setting up next to churches).

Greenwald admits as much when he grants that there is a compelling interest test sometimes applied under the First Amendment, but he doesn't mention that its at the core of modern campaign finance law.

Buckley v. Valeo essentially said that Congress can limit political speech when it has a compelling interest (i.e., its stopping something really bad). The court held that corruption was really bad, but that inequality of voice was not. And therefore, Congress could limit donations (which created a risk of corruption) but not expenditures (which didn't create such a risk).

What we're really arguing about is whether the effects are bad enough.

Posted by: jesmont | January 25, 2010 3:51 PM | Report abuse

What I don't understand is why disallow corporations from giving money directly to candidates? At least it would be clear who owned whom. The Exxon-Mobil candidate in this corner; the SEIU candidate in the other, etc. As long as disclosure is required, why not allow people to see where the support is coming from? The whole PAC thing is so insidious - most people don't even understand when they see one of those "issues" ads who is behind it.

Posted by: merolph | January 25, 2010 4:12 PM | Report abuse

I want to be excited about increased public financing, but I can't help but worry that no matter how much the government tries to help public financing it going to get overwhelmed by the amount of coporate money that will now be in the system. Matt Yglesias pointed it out well in his post where he stated that Bank of America spends $2 billion a year in advertising. They could double the money in a Senate election without breaking a sweat if a particular candidate pissed them off.

And Lomillialor, I don't think Ezra's arguing that this is a good ruling on the merits. What he's saying is that previous laws to restrict corporate money in elections wasn't really doing much to curb corporate money in elections. What this ruling does is shock the consience, so to speak, of the average person, and make them aware of just how much power corporations have in shaping the government through elections. He's saying that maybe this will be so galling that it brings about real reform.

Posted by: MosBen | January 25, 2010 4:13 PM | Report abuse

Oh, and the problem isn't that corporations are "people" entitled to "speech", it's that money is considered a form of speech. Actually, it's more that regulations on the amount of money that can be spent is an infringement of speech. If corporate entities were permitted to have their CEOs write op-eds in support of candidates and have the corporation donate $1,000 (and no more) to a campaign, we wouldn't be so bad off.

Posted by: MosBen | January 25, 2010 4:15 PM | Report abuse

In a Jan. 23 story at your paper titled "Campaign finance ruling leaves Democrats with few options", Dan Eggen and Ben Pershing write that "[t]he decision further weakens the power of the major political parties, which must adhere to campaign restrictions enforced by the Federal Election Commission." (For some reason, this story has disappeared from your website.)

It seems to me this view may be wrong. If a corporation is a person, surely a political party is a person. In fact, aren't political parties incorporated?

Posted by: john2hansen | January 25, 2010 4:27 PM | Report abuse

Well I like the Greenwald article, he makes sense of the media's corporate speech (Fox and MSNBC) pretty well. But I do agree with commenter jesmont at 3:51:
"What we're really arguing about is whether the effects are bad enough. "

But I don't think that's wrong, or even new. When some speech is really bad it generally has broken some other laws or tenets of the law.

In the famous example of falsely shouting "fire" in a crowded theater, the LOGIC is that the right of speech is never really abrogated, but the policing duty placed on government to prevent "imminent lawless action" (which cannot be settled in court prior to its effect, such as a panic or riot resulting from inflammatory speech) kicks in with a greater force - showing that the right itself is not absolute beyond all other considerations of lawfulness.

The point to focus on is not the long-settled situation of corporations enjoying the same protections from tyranny as natural persons. It's that the lawless action of elected officials voting certain ways because of money being given to them should be a crime, and we need to find ways to broaden the application of this logic in light of today's politics.

Posted by: rosshunter | January 25, 2010 4:42 PM | Report abuse

Demand-side: reduce the value of money by making campaign commercials cost less.

Posted by: SamPenrose | January 25, 2010 11:43 PM | Report abuse

--"I pop into this segment at about the nine-minute mark"--

Klein speaks with a lisp? Isn't that just the cutest thing?

Posted by: msoja | January 27, 2010 8:53 PM | Report abuse

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