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RALEIGH If news predictions are accurate, the U.S. Supreme Court is on the verge of undoing one of the key underpinnings of election campaign regulation that have helped North Carolina elections, and those in a number of other states, avoid the corrosive influence of special interest money in politics.
Not ban the corrosive influence of special interest money, you understand, but at least narrow its impact.
Those who follow the court's oral arguments closely and who study the tea leaves scattered about its prior decisions believe the Supreme Court is about to start unlacing the cords that have bound corporate interests from freely participating in the financing of political campaigns.
Money's corrupting influence
This state's policy goes back more than seven decades.
General Statute 163-278.19 has its roots in the Depression era, when some wise legislators were worried about the potentially corrupting influence of big contributions from corporations, insurance companies and labor unions. That law, amended over time, still makes it “unlawful for any corporation, business entity, labor union, professional association or insurance company directly or indirectly” to spend money to help or oppose any political candidate or committee.
It's been, in the main, a good law. It has kept N.C. elections partially free of the taint of big money from powerful special interests who would have liked to buy the governorship, Council of State offices, legislators or judges with the power of the buck. It hasn't stopped large contributions, of course, from individuals running for office; the U.S. Supreme Court long ago ruled that candidates may contribute as much as they like to campaigns, but everyone else has been limited in what they can donate to state elections: $4,000 per election for state offices such as governor and legislator. Federal elections have different limits: $2,300 per election.
And of course corporation officials, like insurance company employees and labor union members, can give individually to campaigns or committees. But corporations have been limited until relatively recently to making their impact through political action committees financed by employees. Lately they have also given to various educational campaigns known as issue advocacy advertising that can affect elections. Both state and federal legislators have tried to find ways to regulate these campaigns by restricting when or how they can be used, with some success.
Same rights for corporations?
What now sparks the court's attention is a case stemming from the 2008 election when the federal McCain-Feingold act regulating electioneering by groups financed with, among other things, corporate money. At issue is whether a group called Citizens United, financed in part with corporate money, could distribute a movie called “Hillary: The Movie” critical of Hillary Clinton during last year's presidential campaign. It involves, among other things, questions about what the First Amendment means and whether corporations are entitled to the same rights as individuals.
As Bob Hall of Democracy North Carolina puts it, “Corporations don't vote and can't be put in jail, but they can live ‘in perpetuity' and shield individuals from legal liability. Why should they have the political ‘free speech' rights guaranteed for individuals, rather than more narrow ‘commercial speech' rights developed through centuries of litigation?”
The Citizens United case seemed to present one question – whether its video-on-demand distribution, somewhat analogous to pay per view, was subject to the McCain-Feingold regulations on electioneering. “But in an unusual move,” writes Damon Circosta, executive director of the non-profit N.C. Center for Voter Education, “the Supreme Court … asked litigants to argue the larger question of whether a decades-old prohibition on corporate funding of elections should remain.”
Judicial policymaking
It should indeed, but it may not. The justices seem determined to create new policy by taking a broad-scope look at this issue. Rather than carving out a place for Citizen United's distribution of video material to those who specifically ask for it, the court appears interested in a form of judicial activism that would lead, in due time, to a dismantling of state and national policies that have attempted over the years – with varied success and without much help from the Supreme Court -- to keep the excesses of corporate and other special interest money out of our elections.
If this turns out to be the case, then a visionary experiment in public funding adopted for North Carolina's appellate judicial elections and a few Council of State races will take on added importance. In accord with the high court's landmark 1976 Buckley v. Valeo decision, it allows candidates who volunteer to limit fundraising and spending to get public funds to run statewide campaigns. It has proved popular with most candidates who have used it, but it may be difficult to campaign against opponents bankrolled by special interests if the Supreme Court turns them loose. The justices of that court should move cautiously, if at all.
Jack Betts is an Observer associate editor based in Raleigh: jbetts@charlotteobserver.com.
