The XX Factor

The Case About the Anti-Hillary Ad Goes to the Supreme Court

If you’re keeping score of acts of conservative judicial activism by the Roberts Court, Citizens United v. Federal Election Commission , the campaign finance case to be argued Wednesday, is a potential twofer. If the Supreme Court does what advocacy groups from the right-wing Citizens United to the ACLU want, and strikes down the ban that prevents corporations and unions from spending independently to back a candidate, it will be telling Congress to get lost by scuttling an important part of McCain-Feingold campaign finance reform. That’s why Solicitor General Elena Kagan warns in her brief for the government that such a decision would be a “direct affront” to Congress. A ruling against the FEC, which stopped Citizens United from airing an anti-Hillary documentary/long attack ad paid for in part with corporate funds, would also necessarily strike down two of the court’s own major precedents. Those are a 1990 ruling upholding a similar Michigan control on corporate and union spending on elections, and a 2003 decision upholding McCain-Feingold’s provision that corporations and unions can’t buy radio and TV ads, in the weeks before an election, which mention the name of a candidate. (There’s another underlying ruling at issue here: The court’s 1976 decision in Buckley v. Valeo that campaign donations equal speech, and so deserve the same protection. But that’s a precedent no one’s talking about disturbing.)

As Lyle Denniston points out on ScotusBlog , the two sides lay out the stakes cleanly in their briefs. The FEC warns against loosing “vast sums” of corporate money on elections with “pernicious consequences”- “increasing the risk of outright corruption, or at least its apparent existence, making politicians beholden to corporations (and labor unions),” as Denniston says. Citizens United challenges the premise that corporate funding of elections is suspect. The court was simply wrong in the past, the group argues, to see the wealth of business as “corrosive and distorting” for politics. The court will wrap the choice in legal tests and language, but that’s the basic question: Would turning on the spigot of corporate campaign funding that McCain-Feingold tried to turn off make politics fairer, or dirtier and more laden by the burden of quid pro quo?

Watching the lobbyists swarm over the healthcare debate, it’s hard to see why the country would be better off with more ads and influence, more injection of the interests of corporations and unions into politics. But you could also conclude that this part of McCain-Feingold is an ineffective stopgap. What matters more, for preventing quid pro quo, is that corporations can’t contribute money directly to a candidate, Eliot Spitzer argues , even if they can still spend for his benefit on their own.

I’m not convinced. The problem is that more radical solutions, like public financing for federal elections-proposed by the late Senator Edward Kennedy in the 1970s-or a trade of free TV time for candidates in exchange for government licensing of the airwaves, have failed. How will they ever stand a chance if the Supreme Court tells businesses to go ahead and spend whatever they want independently to get their candidates elected? They won’t. Instead we’ll get more money, more ads, more noise.