Saturday, January 23, 2010


Read it and weep for American democracy. An unfathomably and unspeakably bad ruling. But the temptation to say "game over" is exactly the wrong reaction to the horrible damage the U.S. Supreme Court has done to our democracy. The game is never over.

There is a large menu of possible courses of action. Public financing of elections. Greater disclosure. Shareholder approval of corporate political spending. A constitutional amendment clarifying that money is not speech and corporations are not people. Boycotts of companies that exploit this brazen act of judicial activism to attempt a hostile takeover of elections.

An important first step is to understand what the Supreme Court did and what it did not do. Whenever a high court ruling comes down, there is a flurry of reaction even before the decision can be digested. First impressions inevitably create some false impressions. This case was no exception.

There were media accounts claiming Wisconsin's century-old law banning corporate contributions was struck down. Not true. The case didn't deal at all with corporate donations, nor did the court's decision. It dealt with corporate election spending. Thursday's ruling may end up inspiring an attempted legal challenge to the law, but for now Wisconsin's law still stands, as does the comparable federal law.

Other stories suggested that the bill the state Senate approved on Tuesday is now dead. Also not true. As we noted in the statement we issued the day of the ruling, a supermajority of justices upheld disclosure of election spending, including any done by corporations. The state legislation we've been working for may need to be changed somewhat, but it certainly can move forward. There are even ways it may be able to be strengthened.

Publicly financed elections remain constitutionally sound. Nothing the Supreme Court had to say Thursday has any effect on public financing programs in general or Wisconsin's new Impartial Justice Act specifically. A perfectly appropriate response to the outrageous ruling in Citizens United v. Federal Election Commission would be prompt and aggressive action by both Congress and the Wisconsin Legislature on further public financing legislation.

And then there's this heads-up to state lawmakers from Justice John Paul Stevens in his dissenting opinion: "Legislatures remain condition the types of activity in which corporations may engage, including electioneering activity, on specific disclosure requirements or on prior express approval by shareholders or members."

Let the counteroffensive begin.

1 comment:

Donna Horowitz Richards said...

Another option is to bring back equal time provisions for all media.

Also, my form of campaign finance reform says money is donated to a campaign, not to a candidate, so if money flows to a campaign it is shared by all candidates, so we get all points of view supported. If money does not flow, then we have less information, but at least it is fair.