Brown turns Green

Before the ink could dry on stories about Scott Brown’s historic Republican victory last Tuesday in Massachusetts the United States Supreme Court stole the headlines. An upset victory for a Republican candidate for the U.S. Senate in Massachusetts is a big story. Changing the campaign finance rules to benefit corporate donors is an even bigger story. More and more green money will find its way into our political process.

Time to color in the details.

In a special session of the United States Supreme Court on Wednesday Associate Justice Anthony Kennedy read his Majority Opinion in the case Citizens United v. Federal Election Commission (2010). It signaled a new day in campaign finance reform.

At issue was a provision of the Bipartisan Campaign Reform Act (BCRA, 2002) that prohibited both corporations and unions to engage in “electioneering communication” 60 days prior to general elections. Much of the details in the BCRA, commonly known as McCain-Feingold, had been held constitutional in the case McConnell v. Federal Election Commission (2003).

What changed? Samuel Alito replaced Sandra O’Connor.

The five most conservative justices all lined up together in forming the majority in the Citizens United case. During the special session Associate Justice John Paul Stevens read from his 90-page dissent. Both sides seemed to understand the significance of this case.

The conservative bloc essentially found any regulatory distinction based on a speaker’s identity a clear violation of the First Amendment’s protection. This also would include the criminalization of corporate efforts to influence the political process prior to federal elections. Kennedy, Roberts, Scalia, Thomas and Alito stood up to defend freedom of speech.

The liberal bloc argued that certain civil liberties have always been limited. Corporate interests, in particular, have been held out of direct political activity for over one hundred years. The constitutionality of the Tillman Act (1907) has been consistently upheld. It prevented monetary donations by corporations to national campaigns. Many, including four on the current Court, saw no problem to limit corporate money in “electioneering communication” as well.

Republicans were pleased with the decision. Democrats were not. President Obama warned that the Court had given a “green light to a new stampede of special interest money in our politics.” Clearly there will be new and creative ways for big money to influence the political process.

Scott Brown became the 41st Republican Senator this week. Brown’s victory, in part, appeared to be a repudiation of Obama’s first year in office. The United States Supreme Court this week in an even bigger story vindicated the First Amendment. In doing so they extended free speech protections to corporate donations to federal election campaigns.

Green trumps brown. Money talks louder than one surprise victory in Massachusetts. Ironically in this democracy the triumph of the people was trumped by the triumph of special interests.

The true colors of this week now look clearly black and white.

If you don't remember much about what we learned about campaign finance law, don't worry. It may now be irrelevant.

By comparison, could this Court decision make us more similar to the systems of Nigeria and Mexico.