Spending Must Be Transparent

February 12, 2010 3:44PM

TCPR’s Clint Brewer explains why the recent Supreme Court ruling on corporate campaign activity is a victory for free speech. This article originally appeared in the Tennessean. In an age where government regulation seems to be in vogue — and possibly inevitable — for both of America’s major political parties, the land’s highest court finds that even corporations have the right to free speech. In Citizens United vs. Federal Election Commission, the U.S. Supreme Court struck down portions of the McCain-Feingold campaign finance reform legislation that said corporations — and by extension, labor unions — could not spend money directly to advocate for or against a political candidate. At a time when corporations and “big business” are being actively reviled by the nation’s media and to some extent its citizenry, the ruling from a Supreme Court dominated by Republican-appointed judges seems out of step with the times. Fortunately for democracy, the ruling is very in-step with the spirit of the First Amendment. Previously, under McCain-Feingold, speech advocating for or against a candidate could only come from a campaign committee, political-action committee or an individual. Of course, this law created a wild array of options for shadowy political operators from both sides of the aisle, advocacy groups and big business alike to see various streams of cash find its way into the political system. Those interested in influencing U.S. elections began creatively using the IRS tax code to establish or use entities to promulgate thinly disguised attacks on candidates in the form of “issue” advocacy. At first, so-called 527 organizations were used for the initial independent expenditure campaigns of the 1990s, though those eventually had to begin disclosing their donors. Still, McCain-Feingold did not address the numerous tax-exempt organizations and trade groups used by both parties to get that same, barely legal message out about candidates under the guise of an issue ad. These organizations are by law allowed to keep their donors private and can take corporate money. This high court ruling does two things: It honors the true intent of the First Amendment, and it rips an intellectually dishonest fig leaf off a campaign finance system that discouraged transparency. There are thousands of pages of explanation and administrative rulings from the Federal Election Commission interpreting and reinterpreting the country’s campaign finance laws. All of this comes in an effort to make our electoral system “fair.” Corporations and labor unions, though, are simply groups of Americans that choose to associate for the purposes of commerce. Rightfully, the court determined that having a fair election system also meant restoring the free speech rights to these groups of people. The real answer to a campaign finance reform is transparency, not further regulation of speech. Use of the Internet, electronic filing and real-time reporting on fundraising and expenditures are all part of the answer to making campaign spending transparent to the voter and the system accessible to all citizens. If members of Congress and our very concerned president want to focus their law-making powers on any portion of campaign finance law, they should start by making the flow of money easier for Americans to track and understand. Regulating speech for some groups and not others is not the answer, and the Supreme Court ruling was a blow for a freer society. Clint Brewer is the executive director of the Tennessee Center for Policy Research.