Cleaning Up the Supreme Court Mess

In a city where the phrase bipartisan initiative is becoming an oxymoron, the urgency of containing the damage the Supreme Court could do to our electoral system creates an opportunity for a rare convergence of interest and principle.

At issue is the court's astonishingly naive decision in January that allows unlimited corporate spending to influence elections. Its 5–4 ruling in the Citizens United case was a shocking instance of judicial overreach and reflected an utter indifference to how politics actually works.

Liberals and Democrats are already mobilizing to fight against Citizens United because they fear the impact of unconstrained corporate activity on elections and legislation. But conservatives and Republicans should also be alarmed that this decision could encourage politicians to extort campaign spending from businesses. Is it really so hard to imagine a congressional leader quietly approaching a business executive and suggesting that unless her company invested heavily in certain key electoral contests, this regulation or that spending program might be changed at the expense of her enterprise?

That's why both parties should join to pass a bill that Sen. Charles E. Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.) hope to introduce this week placing some rules around the new electoral casino that the Roberts court has opened. The proposal is expected to win Republican co-sponsorship. And it should.   

The measure does not try to overturn the court's ruling. Instead, it puts boundaries around this precedent-shattering decision and might make executives think twice before unleashing their companies' treasuries. It would also limit the capacity of politicians to work out cozy deals with business, and thereby help prevent extortion and other forms of corruption. 

Its provisions would require full and timely disclosure of corporate political expenditures, and make it as difficult as possible for companies to hide efforts to influence elections by funneling their money through front groups. Corporations would have to disclose political expenditures to their shareholders and make them public, through links on their Web sites and in their annual reports. 

Politicians now have to tell viewers or listeners as part of their advertisements that they approve the messages in question, and the Schumer–Van Hollen measure would put the same responsibility on corporate officials. If a third-party group were used, the leading financial backer would have to appear in the ads, and the five largest contributors to the message would also have to be identified. If a corporation is trying to affect an election, the voters should know about it.

Certain companies would be explicitly barred from making political expenditures: domestic corporations that are under foreign control, recipients of government contracts, and recipients of TARP money. Think about it: If a company is getting government money, why should it be able to turn around and use receipts that include that money for electioneering?

The billís strong ban on coordination between candidates or parties and corporate entities in their political activities is essential to containing the ability of elected officials to pressure companies—and to prevent parties from becoming mere extensions of corporate interests. 

And to give candidates a chance to fight back against a corporate onslaught, the bill strengthens requirements that broadcast, cable or satellite outlets offer candidates and parties the lowest unit rate for their ads and provide them with reasonable access to airtime. Republican leaders such as Sens. Mitch McConnell and Jon Kyl have shown some sympathy for this idea in the past. 

The conventional view is that this bill is destined to be caught up in Washingtonís mire of partisanship because Republicans will welcome corporate expenditures to strengthen their political position. It's not clear to me why the GOP would want to proclaim itself as the corporate party by opposing a bill of this sort. Many Republicans, above all Sen. John McCain, have been at the forefront of trying to clean up the campaign money system in the past. And it is clear that rank-and-file Republicans know how radical and foolish this Supreme Court decision was. A Washington Post–ABC News poll last month found that 76 percent of Republicans were opposed to the ruling, along with 81 percent of independents and 85 percent of Democrats.

A bipartisan coalition of that sort is rare in politics these days. Congress should be eager to take its lead from a public far more realistic about politics than is the Supreme Courtís majority.     

(c) 2010, Washington Post Writers Group

Related: Steven H. Shiffrin on the Citizens United decision: Who Approves This Message?