An activist U.S. Supreme Court overreached Thursday with its 5-4 opinion that lifted a decades-old ban on corporations directly spending money to support or oppose federal candidates. The decision opens the floodgates for big business (and labor unions) to swamp voters with misleading attack ads and drown out lesser funded voices — including those of the candidates. The only immediate remedies are to require instant public disclosure of the special interest spending, force corporations to seek approval from their shareholders to wage political campaigns and enhance public campaign financing to level the playing field.
The ruling in Citizens United vs. FEC did not have to be so sweeping to reach the appropriate result. At issue was whether Citizens United, a conservative nonprofit advocacy group funded mostly by individual donors but also some for-profit corporate funds, could air its 90-minute documentary, Hillary: The Movie, on cable video-on-demand service during Sen. Hillary Clinton's 2008 presidential primary run. The McCain-Feingold campaign finance law restricted electioneering communication on broadcast or cable TV within 30 days of a primary and 60 days of a general election.
A full-length film about a political candidate, even if it excoriates the candidate as Hillary: The Movie did, should be constitutionally protected. Had Chief Justice John Roberts been truer to his pledge not to reach out to overturn precedent, the court would have found that the time limits on such issue ads were too confining. But Justice Anthony, Kennedy writing for the court's majority, used the case to reach much further and imbue corporations with broad free speech rights in elections.
The court left some restrictions in place. Corporate money still may not go directly to federal candidates and cannot be coordinated with any political campaign. And there are still disclosure requirements that will shine a light on which candidates are supported by business interests.
But it will be up to Congress to facilitate greater accountability by tightening up rules on disclosure, requiring more instantaneous reporting and expanding disclosure so corporations can't use front organizations without being found out. Also, Congress should grant shareholders a say in whether their companies' expend funds for candidate elections.
The media also will have an even larger role to play by highlighting connections between election ads, corporate funds and the candidates who benefit. Corporations may not be too keen on having consumers know they are promoting a candidate — and candidates will have to explain to voters why they are being supported by corporate interests. Ultimately, though, it will be up to voters to educate themselves beyond the irresponsible attack ads that will be more prevalent than ever.