If you weren't yet convinced that a conservative, activist court could be dangerous for democracy, you should be now.
In a 5-4 decision last week, the U.S. Supreme Court made it legal for corporations and unions to spend unlimited amounts of money on political advertisements—and enshrined corporations with the same political speech rights as human beings. In doing so, the nation's highest court overturned its own precedent—and in the process, showed contempt for more than a century of congressional, judicial and public opinion. The court established bad precedent that will likely take decades to overcome and presaged future rulings that will likely circumscribe campaign finance law even further.
There is little doubt that this decision in Citizens United v. FEC is bad for democracy. It will lead to billions of dollars of additional campaign spending. It will force elected officials to spend more time fundraising and less time with average voters. It will make an already skeptical public even more cynical about the political process. And it will make it even easier for corporations to get what they want from Congress and state legislatures, giving them new tools to threaten, bribe and punish elected officials.
But as sweeping as last week's ruling is, the deregulatory effects of the Court—and the deleterious impact of money on politics—have been a problem for years. Well before this ruling, courts had diminished the government's ability to effectively regulate campaign spending. And long before the U.S. Supreme Court reaffirmed corporate personhood, our system of self-government was threatened by the encroaching power of special interests. Corporations were diluting and scuttling reform efforts for health care, finance and the environment before Thursday's decision, and they'll continue after (though arguably now with even more impudence).
This is not to say that last week's ruling is without real consequences. The decision endows corporations with unfettered election spending rights and expands their power in significant ways. As Damon Circosta of the N.C. Center for Voter Education put it last week, the Court's decision hands "an amplifier to the very folks who already have a megaphone." This will make it more difficult for average Americans without the benefit of millions of dollars of speech amplification to have their voices heard. And it will undoubtedly harm the integrity of our political process as our public elections come to look more like public auctions.
But it is to say that Citizens United should not be seen as the death knell of campaign finance reform. Indeed, this decision is so unprecedented and far-reaching that it could be the catalyst that prompts elected officials to start taking money-in-politics reform more seriously. And given that the traditional campaign finance tool kit has suddenly become much smaller, these elected officials will be forced to look at reforms that may cut closer to the heart of the problem than reforms of the past.
One reform idea likely to gain prominence is public campaign financing. Public financing provides incentives to candidates who agree to strict spending and fundraising and encourages candidates to raise money from small donors. Because the program is fully voluntary, it would avoid the limitations of top-down regulations. Because it adds a clean stream of money (rather than barring a dirty stream), the system is fully constitutional. Plus, its matching money provisions would give candidates enough money to respond to attack ads from corporations and others. Because it gives candidates a viable way to run for office without corporate support, this system should appeal to both incumbents and challengers newly cognizant of their vulnerability to corporate attack ads.
Other reforms that Citizens United might spur include new laws that require stockholder approval for corporate election expenditures, improved disclosure requirements and bans on spending from corporations that have contracts with the government. Some have suggested over the past week that corporate ad spending should be subject to "Stand By Your Ad" laws, and company CEOs should be forced to appear in every authorized advertisement. Still others are even calling for the passage of a constitutional amendment that affirms the government's ability to regulate campaign finance, undermining the Supreme Court decision more directly.
Perhaps the most meaningful (and ironic) thing that could come out of last week's decision would be a new wave of money-in-politics reform. If elected officials are smart, they will seize this moment as an opportunity for real change and democratic renewal. By enacting public campaign financing and other reforms now, in the immediate aftermath of the Supreme Court's decision elected officials will better enable us to weather the decision's fallout. But beyond that, they will be making democracy investments that give citizens a greater capacity to self-govern. And that's an achievement that will outlive any court decision.
Chase Foster is the director of N.C. Voters for Clean Elections, a coalition of groups lobbying for campaign reforms in the General Assembly. He is a 2009 Indy Citizen Award winner for his work with the health care reform/ street theater group, Billionaires for Wealth Care.