Campaign finance controversy

Like it or not, and we didn’t like it, the Supreme Court’s controversial decision in Citizens United vs. Federal Election Commission determined that corporations have a constitutional right to make independent expenditures in connection with an election — expenditures, that is, on behalf of (or against) a candidate, but not given directly to the candidate’s campaign. Such spending, the court said, may not be limited.

But the court left standing a 100-year-old prohibition on direct corporate contributions to political campaigns. That’s why it was surprising and exasperating when a federal judge in Virginia, in a ruling that would further weaken the country’s campaign finance laws, concluded last week that the ban on direct contributions was also unconstitutional.

Ruling in a criminal case arising from contributions to Hillary Rodham Clinton’s Senate and presidential campaigns, U.S. District Judge James C. Cacheris reasoned that if the Supreme Court abolished the distinction between individuals and corporations when it came to independent expenditures (including television advertisements), it follows that individuals and corporations must be treated the same when it comes to direct campaign contributions. Never mind a 2003 Supreme Court decision upholding the contribution ban. (Cacheris said the precedent didn’t apply because it involved a nonprofit corporation.)

Campaign finance law can be bewilderingly complex, but the Supreme Court has been clear in drawing a distinction between independent expenditures and campaign contributions. Both raise 1st Amendment issues, the court has ruled, but contributions can be regulated because they pose a bigger danger of the reality or appearance of corruption. In other words, the danger of a quid pro quo is greater when a donor subsidizes a candidate than when he uses his funds to express his own message. On this theory, the law puts limits on campaign contributions from individuals and bans corporate contributions altogether.


Some observers question this distinction and argue that independent expenditures on a candidate’s behalf create the exact same sense of obligation on a candidate’s part as direct contributions. That’s why Congress enacted the limits on independent expenditures that were struck down in Citizens United. But the court has insisted on the contribution/expenditure distinction, and maintaining it provides at least one check on the corrupting influence of corporate money in politics. As long as the court adheres to that reasoning, Cacheris is simply wrong when he writes that “if corporations and individuals have equal political speech rights, then they must have equal direct donation rights.”