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Getting ready to battle over ads

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David Broder
January 31, 2010
— The sober, sprawling State of the Union address President Obama delivered last week was marked by one extraordinary moment. It came when the president looked down at six robed members of the Supreme Court, seated directly in front of him, and criticized their recent 5-4 decision that he said “will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”

While Democrats stood applauding his call on Congress to pass legislation narrowing the impact of the ruling, the TV cameras caught Justice Samuel Alito, one of the two George W. Bush appointees who made the reversal of precedent possible, apparently mouthing the words, “Not true.” Such direct confrontations between the branches of the federal government are almost unprecedented, and they set the stage for what ought to be a serious debate.


The day after, much of the discussion was focused narrowly on the question whether Obama was correct in saying that foreign corporations would be unleashed on American elections by the justices’ decision.


The dissenting opinion of Justice John Paul Stevens had put the proposition more carefully. It said that the reasoning behind the majority opinion, barring restrictions on corporate-financed political ads, “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”


But the majority opinion specifically said it was not deciding that question because no foreign-controlled entity was involved in this case. Lawyers differ in their speculation on how the court would rule if that question is presented.


But Obama does not want Congress to wait for possible further damage to campaign finance regulation by the conservative wing of the court. Democrats are ready to attempt legislative steps to reduce the impact of the ruling that the First Amendment invalidates all past efforts to limit domestic corporations using their own funds to support or oppose candidates.


Indeed, as soon as the court signaled last year its interest in reviewing that fundamental constitutional question, Sen. Chuck Schumer of New York, Rep. Chris Van Hollen of Maryland, and members of Obama’s White House counsel’s office began meeting quietly to prepare a strategy in case the ruling went against them—as it did.


Several senators and representatives have already introduced bills that would—if found constitutional—keep intact the existing ban on ads financed by foreign or foreign-controlled corporations.


On Tuesday, the Senate Judiciary Committee will convene to canvass ideas for going further in order to limit the newly proclaimed rights of domestic corporations and unions to finance campaign ads from their own treasuries.


One option, a Schumer aide told me, might be an attempt to preserve the ban for corporations that employ Washington lobbyists, or enjoy government contracts or receive government bailouts or other substantial subsidies. Another idea is to require the CEO of a company to appear at the end of its political ad, just as candidates already have to do.


Another notion is to require the main funders to be identified by name or by corporate logo in their ads. Or, some suggest, a law might require stockholder approval for any corporate political message.


With the 2010 campaign season about to begin in Illinois, which has a primary Tuesday, congressional Democrats are understandably anxious to shut down the corporate spigot as much as they still can and as fast as they can.


Van Hollen told me that his goal is to have a bill ready to introduce within the next two weeks and to secure hearings soon thereafter.


It is no coincidence that Schumer and Van Hollen, the two prime movers designated by the Democratic leadership of the Senate and House, are also the men who played key roles in the Democratic takeover of both sides of the Capitol.


Some political observers speculate that companies will be slow to take advantage of the new political freedom the court has given them, holding back rather than risking a high profile that might cost them customers.


But the Democrats do not want to take that chance.


Some, like Van Hollen, even think that if Republicans try to block a measure to re-lock the door against foreign corporations playing in American politics, “it could become a public issue” in the fall campaign.


David Broder is a columnist for The Washington Post. Readers may write to him via e-mail at davidbroder@washpost.com.

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