Steve Bickerstaff is adjunct professor in the university’s School of Law and an expert in constitutional law, regulating the use of money in politics, local government law, election law, voting rights, public policy litigation and telecommunications regulation. He is the author of “Lines in the Sand” (2007) about the controversial 2003 congressional redistricting in Texas and co-author of “International Election Principles” (2009). Previously, Bickerstaff served as Parliamentarian of the Texas Senate and special assistant Texas Attorney General before founding Bickerstaff and Heath, one of the premier election law firms in the country.
The upcoming elections are the first time that corporate funds can be legally used to expressly advocate the election or defeat of specific candidates.
Earlier this year, a five-judge majority of the United States Supreme Court held that corporations have the same right as natural citizens to spend money to expressly advocate the election or defeat of political candidates. In order to rule in this manner, this majority found it necessary to take the extraordinary steps of overruling precedent, disregarding the issues developed in the courts below, ignoring the requests of all of the parties to the litigation (no party asked that the ban on corporate campaign expenditures be declared unconstitutional) and conducting a special hearing on the validity of the federal ban. This majority of the Court could easily have given the appellants the relief that they requested without insisting on such a hearing or ruling, or could easily have fashioned relief in 2010 that allowed Congress an ample opportunity to act.
Instead, the Court acted in a manner that dramatically changed the campaign finance rules in time for the 2010 election cycle. Congressional efforts to mitigate the effect of the majority’s decision were easily blocked by Republicans in the U.S. Senate. As a result, the election system has been immediately and widely opened to large amounts of corporate cash that can be raised and used while leaving the corporations anonymous. The 2010 elections will show the effects of this phenomenon.
Corporations often have a great deal at stake in legislative decision-making. Therefore, they are anxious to win the favor of current officeholders or candidates who they perceive are in a position to help them on important pending or planned legislation. This effect was shown in Texas in 2002 when then Congressman Tom DeLay raised $749,000 from 20 corporations in support of his private organization (Texans for a Republican Majority). Many of the corporate executives knew at the time that the contributions were of questionable legality and knew little or nothing about DeLay’s plans for the funds. They knew, however, that DeLay wanted the funds and that pleasing DeLay was important to the corporation’s objectives in Congress.
Now, after the Supreme Court’s ruling, similar private organizations, such as Karl Rove’s American Crossroads (Crossroads GPS), are soliciting tens of millions of dollars from corporations. The corporations themselves remain anonymous behind the cover of the private organizations. These organizations are poised to raise and spend upwards of $50 million of corporate money in the final days before the general election to expressly advocate the defeat of certain Democrats and the election of certain Republicans. Such conduct is specifically what was illegal before the majority’s ruling.
Most corporations are good citizens, but some are not. Some have wrongly benefited financially from this nation’s follies (for example, Iraq) and lack of effective regulation. These businesses generally were shocked by the election of Obama and the possibility of changes that might limit or prevent this flow of profits. They now see an opportunity to forestall or reverse this change and, instead, to restore the relationships in Washington that were essential to their prior success.
As important as the defeat of Democrats may seem to some persons in 2010, however, this election is likely just a dry run for using corporate funds to defeat Obama in 2012.
Did each Justice of the majority of the Supreme Court intend to create this flow of corporate funds to aid Republican candidates? I do not know. There is no doubt, however, that the effect of its unnecessary ruling was foreseeable and will be hugely felt in the upcoming 2010 elections and thereafter.
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