As one would expect, the New York Times was apoplectic recently over an amicus brief filed by the Republican National Committee in the U.S. 4th Circuit Court of Appeals that argues that the federal ban on corporate contributions to candidates is unconstitutional. Titled “Back to the Robber Barons,” the editorial shows a complete misunderstanding of campaign finance law, its history, and the 1st Amendment.
The Times talks about the 105-year old ban with religious fervor, as if its passage was the same as finding the Holy Grail. While the 1907 ban on direct contributions by corporations may have been an effort by some to “reform” American elections, it certainly was not because of “the robber baron scandals” as the Times claims. The chief sponsor of the bill Sen. Ben “Pitchfork” Tillman, was the former governor of South Carolina and a virulent racist. He was almost single-handedly responsible for the implementation of Jim Crow in South Carolina and was banned from the White House by Teddy Roosevelt.
Tillman wanted this law passed because, at the time, corporations generally contributed to the Republican Party, not the Democratic Party, which advocated the racist politics of state-sanctioned segregation. Tillman wanted to hurt the election prospects of the Republican Party, not reform the American election process. Roosevelt, who had run as a reformer, signed the law because he was embarrassed about allegations that the Republican Party had received large contributions from companies such as New York Life.
But it’s important to keep in mind something the New York Times ignores: At the time the Tillman Act was passed, there were no limits on how much money could be contributed to a federal candidate. The editorial makes the false claim that overturning it would allow “million-dollar-plus donation[s] from any corporation.” Since the passage of the Federal Election Campaign Act in the early 1970s, contributions have been strictly limited. FECA imposed a $1,000 maximum that was raised only with the passage of the McCain-Feingold law in 2002. The limit went up to $2,000 with an annual increase based on inflation. The limit for the 2012 presidential election cycle is still only $2,500.
The Supreme Court upheld the limit in the seminal case Buckley v. Valeo. But the fear expressed by those who claim that corporate treasuries could overwhelm the system if direct contributions were allowed makes no sense. If a huge corporation such as Microsoft or Exxon was allowed to contribute directly to a federal candidate, the limitation would still apply.
It’s hard to imagine that corporations would be “wooing candidates directly with largess” as the Times claims, when they are limited to contributing only $2,500 just like John Q. Public. And in a presidential election where the incumbent President is expected to raise upwards of $750 million to a billion dollars, does the Times really expect its readers to seriously think that the candidate would be beholden to a corporation that contributed .00025% of the $1 billion raised by the candidate?
As the Supreme Court has held, the only legitimate and constitutionally-acceptable purpose of contribution bans or limits is to prevent corruption or the appearance of corruption. As the RNC says in its amicus brief: “If able to make direct contributions, corporations would immediately be subject to the same contribution limits as individuals–contribution limits that Congress has determined pose no significant risk of quid pro quo corruption… It follows that the District Court is correct in acceding to Congress’s legislative judgment that contributions at or below the proscribed limits do not pose any risk of such corruption.”
What is especially ironic about the tirade about the dangers of corporations is that it neglects to mention that it’s a large corporation itself — one that reported $2.4 billion in revenue in 2010. The only reason the Times could endorse candidates and engage in other types of election-related speech (unlike other for-profit corporations) prior to the Supreme Court’s decision in Citizens United is because of an exemption for media corporations in federal law.
It was a classic case of free speech for the for-profit newspaper, but not for other for-profit companies. It is actually the Times that it is engaged in “muddled reasoning” on the 1st Amendment, not the federal district court in this case, as its editorial claims.