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Two Views • Supreme Court campaign finance ruling forever changes elections, some say not for the better
Last Thursday, the U.S. Supreme Court issued one of its most significant decisions of the entire 2009 term: 'Citizens United v. Federal Election Commission.'
In a 5-4 decision, the court struck down limits on corporate independent political expenditures in federal races. The court held that the only compelling interest the government had in restricting the right to free speech in this context was preventing actual corruption or the appearance of it. Leveling the playing field is not sufficient enough of a concern to warrant infringing on the right to free speech.
The court concluded that there is no corruption (or appearance of it) when independent expenditures are not coordinated with a candidate. The court did leave in place the ban on direct corporate and union contributions to federal candidates and also left in place the laws requiring disclosure of those responsible for the content of advertisements.
Although other states will have to amend their campaign finance laws, all this will have little immediate effect on Oregon because the state's constitutional protections for speech do not permit campaign contribution limits. Although corporations and labor unions are permitted to engage in independent expenditures in our state, they rarely do so because they can donate directly to candidates. In this way, candidates who receive individual, corporate or union contributions are primarily responsible for their own messages.
However, the Citizens United ruling will likely put an end to further efforts to impose limits on Oregon campaign contributions, because limits will make no sense if corporations and unions can spend whatever they wish on independent advertisements.
It is certainly not in the interest of voters to limit a candidate's funding to shape his or her own message and yet permit outsiders to tell voters what that candidate stands for.
Public financing schemes have their own problems, including dubious constitutionality (Portland's scheme has never been challenged) and use of taxpayer dollars to broadcast messages with which the taxpayers may not often agree. Ten years ago, Oregon voters defeated a similar statewide proposal at the polls by a 60 percent to 40 percent margin, because voters realized that candidates should not be using taxpayer money to broadcast messages with which they disagree.
There are, however, some strategies available to address the concern that there is too much money spent on political campaigns.
The first strategy is to zero in on where the money is spent. Several years ago, a reporter asked me why it was necessary to raise so much money for a candidate I was backing. My response was, 'We have to raise a lot of money to pay your friends in television.' The Federal Communications Commission could require all broadcasters to provide significantly lower rates to candidates for political advertising. This would go far in lessening the pressure on candidates to raise so much money.
In addition, the Citizens United case makes clear that federal and state disclosure laws are constitutionally permissible. Oregon should bulk up its campaign disclosure laws to require real-time electronic reporting of campaign contributions and expenditures. Voters should know through instant Internet disclosure who is paying for political messaging.
However, the best strategy to combat circumstances in which one candidate appears to be able to amass more resources than the other is to change the imbalance using more speech. Although we spend significant sums on campaign advertisements, they pale in significance to the amount of money spent advertising run-of-the-mill commercial products like laundry detergent and cat food.
If every citizen who resented the vast sums of money spent on certain political campaigns were willing to send a mere $5 to the candidate of his choice, no legitimate candidate would go without resources to adequately broadcast his or her message.
John DiLorenzo is a partner at the law firm of Davis Wright Tremaine LLP and argued VanNatta v. Keisling, the Oregon Supreme Court case, which held that Oregon's prior campaign contribution limits were unconstitutional. He lives in Southwest Portland.