The Supreme Court unconscionably overreached last month when it ruled -- in a case that didn’t require it to address the issue at all -- that corporations have a 1st Amendment right to advertise on behalf of political candidates. That decision overturned a 60-year-old law, and Congress is right to be considering ways to remedy some of its unhealthy consequences. But in doing so, it needs to be more discriminating than the court was.
Sen. Charles E. Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.) have summarized legislation they will propose as a response to the court’s decision. Some provisions admirably balance concerns about corporate manipulation of elections with the 1st Amendment right announced by the court. Most notably, the bill would require fuller disclosure to both the Federal Election Commission and to voters of the role played by corporate money in campaign advertising, including ads sponsored by hard-to-identify “shell groups.”
Another useful provision would require corporations to disclose their political expenditures to shareholders. We’d go even further and require that shareholders and rank-and-file union members approve political ads paid for by their organizations. We also support a proposal that would place further restrictions on coordination between a corporation or union and the campaign of a candidate it might endorse.
However, some of Schumer and Van Hollen’s proposals seem designed less to address the outstanding issues and tighten up legitimate restrictions than to repeal the court’s decision by stealth. For example, the legislation would “prevent government contractors from spending money on elections.” But such a provision would catch in its net a dizzying multitude of companies, from car companies to software suppliers to soda manufacturers that place vending machines on military bases. Some companies -- defense contractors, for example -- are so beholden to government that the court might consider their political expenditures a quid pro quo. But Congress should be careful not to use the contractor provision to sweep up most of the economy.
Finally, Schumer and Van Hollen would extend a current ban on foreign individuals and companies spending money in U.S. elections to encompass any firm with 20% or more foreign ownership. We’d advocate a higher threshold, given the extent of foreign investment in this country and vice versa.
Allowing unions and corporations to advertise on behalf of candidates places a burden on voters to discern (and sometimes discount) the motives of those speakers -- a burden Congress can lighten with strict disclosure requirements. Ultimately, however, citizens must educate themselves about who is telling them how to vote -- and why.