Bickerstaff: The threat from corporate 'citizens'

A five-judge majority of the U.S. Supreme Court intervened in 2000 to determine who (George W. Bush) would become the nation's president. Now, another five-judge majority (three of the same justices, plus two Bush appointees) has intervened again in a way that seems designed to undermine the Obama presidency beginning with the elections in 2010.

Earlier this year, the five-judge majority held that corporations have the same right as natural citizens to spend money to expressly advocate the election or defeat of political candidates. To do that, the majority took the extraordinary steps of overruling precedent, disregarding the issues developed in the courts below, ignoring the requests of all of the parties to the litigation (no party asked that the ban on corporate campaign expenditures be declared unconstitutional) and conducting a special hearing on the validity of the federal ban.

Even if the majority's legal reasoning on the constitutionality of the corporate ban is plausible, its act of judicial activism is shocking. This majority of the court could easily have given the appellants the relief that they requested without insisting on such a hearing or ruling, or could easily have fashioned relief in 2010 that allowed Congress an ample opportunity to act. Instead, the justices acted in a manner that dramatically changed campaign finance rules in time for the 2010 election cycle.

Congressional efforts to mitigate the effect of the majority's decision were easily blocked by Republicans in the U.S. Senate. As a result, the election system has been opened to large amounts of corporate cash that can be raised and used while leaving the corporations anonymous. Make no mistake, the ruling had this effect and corporate cash is flowing.

Corporations often have a great deal at stake in legislative decision-making. Therefore, they are anxious to win the favor of officeholders or candidates who they perceive are in a position to help them on important pending or planned legislation. This effect was shown in Texas in 2002 when then-U.S. Rep. Tom DeLay raised $749,000 from 20 corporations in support of his private organization (Texans for a Republican Majority). Many corporate executives knew that the contributions were of questionable legality and knew little or nothing about DeLay's plans for the funds. They knew, however, that DeLay wanted the funds and that pleasing DeLay was important to the corporations' objectives in Congress.

Now, after the ruling, similar private organizations are soliciting tens of millions of dollars from corporations. The corporations remain anonymous while the organizations are poised to raise and spend upwards of $50 million of corporate money to expressly advocate the defeat of certain Democrats and the election of certain Republicans. Such conduct is specifically what was illegal before the ruling.

Most corporations are good citizens, but some are not. Some wrongly benefited financially from the nation's follies and lack of effective regulation. These businesses generally were shocked by the election of Barack Obama and the possibility of changes that might block the flow of profits. They now see an opportunity to restore the relationships in Washington that were essential to their prior success.

As important as the defeat of Democrats may seem to some people in 2010, this election is merely a dry run for using corporate funds to defeat Obama in 2012. Corporations and private organizations are not the individual citizens who, misguided or not, genuinely believe in change for the good of the country. Instead, corporate officials and political consultants are exploiting the campaign finance system for personal political and corporate gain.

Did each justice of the majority of the Supreme Court intend to create such an undermining of the Obama administration? I do not know. There is no doubt, however, that the ruling's effect on the flow of corporate funds to aid Republicans was foreseeable and will be hugely felt in the 2010 elections and thereafter.

Bickerstaff (sbickerstaff@law.utexas.edu) is an adjunct professor at the University of Texas School of Law.