Kerry Calls For Constitutional Amendment To Reverse Supremes

Schumer launches effort in Rules Committee to stem potential flood of corporate campaign money

By John Eggerton -- Broadcasting & Cable, 2/2/2010 1:22:37 PM

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 Elections."

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.

Schumer had 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, the Supreme 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 funding.

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 hearing Tuesday.

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 challenged.

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.