Today's Supreme Court opinion marks a very bad day for American democracy, and one that was totally avoidable. Make no mistake: the Supreme Court had ample ways (I count at least six) to have avoided deciding the issues in the case. The case will affect not just Congress, but also state and local races, including judicial elections. In no elections will corporate or labor union spending limits be constitutional.
So what can happen now? There are a few options, but most appear either politically unrealistic, unconstitutional, or both:
1. Reenact narrower corporate spending limits. Some are suggesting that a narrower ban, such as one that targets only wealthy corporations. I don't think that will fly. Unlike many recent opinions from the Supreme Court in recent years, this one is not fractured. You have a united, five-Justice majority saying pretty much per se that spending limits are unconstitutional (except perhaps foreign corporations). There seems little wiggle room in the opinion.
2. Enact new public financing plans. If we worry about corporate dominance of money in the political process, how about trying to subsidize some campaigns through public financing. Today's opinion does not take public financing plans off the table, but an earlier Supreme Court opinion, FEC v. Davis, likely takes the most attractive portion of public financing plans out. Recent plans have had a provision allowing for additional "matching funds" when a candidate faces a wealthy opponent or third party spending. Relying on Davis's rejection of equality rationales for campaign finance regulation, an Arizona Court just struck down Arizona's matching fund component of its system. Without matching funds, candidates won't participate. With them, the plans may be unconstitutional.
3. A constitutional amendment. Are you kidding? A supermajority of Congress and the States to put limits on corporate spending. Not in my lifetime.
4. End the soft money ban. Really? Why do that? Well Congress might consider it because now third party groups, which tend to be more unaccountable and negative than parties will have greater ability to run ads, with parties' hands tied by that part of McCain-Feingold not yet struck down. The parties won't like it. If the ban is lifted, the potential for corruption increases.
5. Better disclosure. By an 8-1 vote, this gets a green light. Disclosure is much better than nothing, but it is not nearly enough to solve the corruption and inequality problems that will plague our system.
6. Change the Supreme Court. If one of the conservative Justices leave the Court, the law could change back in an instant. But that's not anything anyone can plan.
Patience may be the best medicine now.
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