Nonprofit Newswire | The US Supreme Court’s Bad, Bad Decision

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January 25, 2010; The Daily Maverick | Yes, it was a very bad decision reached by the Supreme Court last week on campaign finance, or shall we say, electioneering finance. As everyone by now knows, the Court rode hobby horse on the Citizens United case, focused on whether a right wing group that had made a virtually unknown film called “Hillary: The Movie” had violated campaign financing rules, to conclude that “Congress cannot limit corporations, unions or any other organization from paying whatever they want to spread their respective political messages at election time—for or against any candidate,” as the Daily Maverick writer put it. Lots of observers seem outraged and shocked by the decision. From our position, outrage yes, but shock? This was entirely predictable for a couple of reasons: (1) Defenders of Citizens United, including many progressive nonprofit organizations (the press seems to be focused on the ACLU as having supported Citizens United as its new “Skokie moment” comparable to the ACLU’s defense of a Nazi march in suburban Chicago, but others were also on the CU side of the case), were concerned whether the FEC (or McCain-Feingold) restrictions were violating CU’s free speech rights, that is, CU’s nonprofit free speech rights. There are some in our sector who think that nonprofits are prevented from being politically effective because of the no-electioneering shackles of 501(c)(3) status and the FEC restrictions about broadcasting messages that name specific candidates 30 days before a primary election or 60 days before a general election. Sorry, this Supreme Court decision, equating spending money with free speech unleashes not the energies of the 501(c)(4) arms of nonprofits like the Sierra Club, but the much more powerful spending of corporations who are, shall we say, slightly better heeled than us nonprofits. It may well be, as a thoughtful foundation executive once said privately in a meeting, that in order to eliminate the worst excesses of campaign finance abuse, we as nonprofits might have to accept some limitations on free speech. Equating money with free speech is one of those items, because unlike all of us with one set of vocal chords and an equal ability to pull the lever in the voting booth, when it is a matter of money, some of us—corporations—will have more free speech than others. (2) Another matter is the notion that a corporation is a “person” and therefore restrictions on a corporate entity’s spending proclivities means that a “person” (in the form of, say, Exxon or AIG) has sacrificed some aspect of its (his? her?) First Amendment free speech protections. Corporate “personhood” is one of the pernicious legal interpretations that someday someone somehow will figure out how to overturn. (3) And there’s the final problem, that corporations and others would be able to find avenues to overturn elements of McCain-Feingold, it was as certain as death and taxes. Remember how the restrictions on PACs led to the creation of 527s? Clamping down on a campaign finance outrage in one instance has always led to the discovery of loopholes elsewhere. Both political parties are part and parcel of this. Let us say something nice about (some) corporations for a moment: Many corporations are fed up with both parties routinely shaking them down for contributions to the parties and for soft money. Until this nation discovers that the only way to solve the campaign finance conundrum is public financing of campaigns, we’re going to go through continued cycles of laws and regulations, loopholes, and court challenges ad infinitum. Campaign finance can’t be successfully auto-tuned like an off-key pop singer. The solution is going to have to be, eventually, public financing of election campaigns. Is this a nonprofit issue? Yes, because the campaign process is sucking millions—billions—out of productive activities into electioneering expenditures that, as voters in Massachusetts know from the recent senatorial election, don’t do much or anything to educate the voting public. Public education is a nonprofit issue.—Rick Cohen