Kerry Calls For Constitutional Amendment To Reverse Supremes
Senate Communications Subcommittee Chairman John Kerry
(D-Mass.) says there needs to be a constitutional amendment indicating that
corporations don't have the same free speech rights as individuals.
That came in a Senate Rules Committee hearing Tuesday (Feb.
2) with the rather loaded title: "Corporate America vs. The Voter:
Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending In
At the hearing, committee Chairman Charles Schumer (D-N.Y.)
launched an effort to stem a potential new flood of corporate campaign ad money
to broadcast and cable outlets.
Kerry said it would take some time to craft that amendment,
and in the meantime the committee should pass various bills that have been
introduced to tighten up disclosure and disclaimer rules and give shareholders
more say in corporate campaign speech.
Kerry's call for a constitutional amendment was seconded by
Senator Tom Udall (D-N.M.), who also said he planned to introduce legislation
in the Senate calling for a complete overhaul of the campaign finance system.
Kerry also put in a request for free airtime for candidates,
and a number of Senators brought up the issue of lowest unit rates.
That is the requirement that broadcasters charge their
lowest unit price for campaign advertising. The loophole some campaign reform
activists see in that requirement is that the lowest unit rate is a preemptible
spot, and that to get a guarantee of not getting bumped, candidates have to pay
for the higher, non-preemptible rate.
Schumerhad already telegraphed his strong opposition to the Supreme Court decision
in a press conference two weeks ago, saying the court had just selected the
winners in the next election: corporate America. He said the hearings would
include exploring legislation to re-implement the ban, if possible.
In a close 5-4 decision that included a host of partial
dissents and concurrences, theSupreme Court threw out the prohibition on corporate use of treasury funds
for political speech--specifically for broadcast and cable spots in federal
elections--taking a big bite out of campaign finance reform law. "No
sufficient governmental interest justifies limits on the political speech of
nonprofit or for-profit corporations," said the court in an opinion
authored by Justice Anthony Kennedy and joined in part by Chief Justice John
Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas.
Somewhat ironically, the court actually ruled against
Citizens United, which brought the appeal, on the narrower issue of whether
broadcast and cable spots it wanted to run promoting a documentary of then
candidate Hillary Clinton were subject to discloser requirements under BCRA.
The court held that they were, but said it could not stop there and needed to
rule on the constitutionality of the ban on corporate and union treasury
Various campaign reform groups have pledged to fight the
ruling, as has the president, who said he would make it a priority to work with
Congress to try to reverse the ruling.
A mix of foes and fans of the decision held court in the
Steve Bullock, Montana
attorney general, who was a witness at the hearing, said the reaction to the
Supreme Court decision has overlooked the effect on state and local elections
and the state campaign finance limit laws now thrown into question. His state
has a limit on corporate spending in elections that "Montanan's believe
in," he says. The Supreme Court decision means that limit will likely be
With the floodgates open to corporate spending, there will
be greater opportunity to corrupt elections, he warned, including the potential
of foreign influence. He says Montana
judges are held accountable through elections, but that the influx of money
could corrupt the judicial system.
Allison Hayward, George Mason law professor, said the
court's decision fits squarely with Supreme Court jurisprudence. She cautioned
Congress to wait and see what the outcome was, then regulate appropriately,
saying she was not sure that corporations would spend differently. Bullock
countered that it would not take sitting through 10 years of elections to know
the kind of influence that corporations can have.
Ranking Republican Robert Bennett (R-Utah), cited figures
from 1998 of $1.6 billion in campaign spending, then the most recent figure of
over $5 billion, saying campaign finance reform had hardly kept big money out
of politics. But veteran campaign finance reformer Fred Wertheimer countered
that reform was never about getting big money out of the system, but getting
the big donors out who could influence the elections.
The debate was brought down to the personal level by several
Senators who talked about the increased pressure on them if drug or oil
companies could use the threat of big-bucks campaigning against them. Bennett
countered that while he was also facing groups from outside spending money on
radio and TV and billboard and direct mail, and he didn't like the idea of
having outsiders mischaracterize and attack him, he also said he thought that
was their constitutional right.
Moritz College Law Professor Edward Foley argued that the
decision left room to get at some corporations through the continuing ban on
campaign ad spending by government and quasi-government entities. He argued
that ban could be applied to defense contractors or Wall Street firms that had
received TARP money. Schumer said the committee planned to consult with
him as they worked on legislation.
Steve Hoersting, Alexandria-based Center for Competitive
Politics, stood up for the decision. He said the Supreme Court had simply said
that citizens can speak about politics in whatever forum and grouping they
choose. He called the change healthy for politics and said Congress should
follow that lead and remove more campaign finance restrictions.
Wertheimer, who said he has been pushing on the Hill for
public financing of elections since 1973, called it the most radical and
destructive campaign finance decision in the court's history. He said Congress
needed to act now to try and repair it before the 2010 elections.
Wertheimer also pointed out that it was not just Democrats
unhappy with the court's decision. He quoted from an interview with Nebraska
Senator Chuck Hagel, who had warned before the decision that lobbyists would be
running wild if the ban were overturned, which he said would be an astounding
blow against good government.
Broadcasting & Cable Newsletter
The smarter way to stay on top of broadcasting and cable industry. Sign up below
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.