The Senate Judiciary Committee held a hearing Wednesday about possible legislative responses to the Citizens United case, which struck down several longstanding prohibitions on corporate political contributions.
Many senators at the hearing expressed frustration with what they perceived to be an overruling of legal precedent and infringement upon the right of Congress to determine how elections can be financed.
“I hate to think of what the numbers would have been in the last few elections without McCain-Feingold,” said Sen. Ted Kaufman (D-Delaware), referring to the campaign finance reform law from which key provisions were struck by the ruling.
Three lawyers were questioned at the hearing, and they all seemed uncertain about exactly how corporations would react to the ruling.
“The thing we don’t know is how corporations are going to respond to having First Amendment rights,” said Doug Kendall, president of the Constitutional Accountability Center, a progressive think tank. “We’ve never had that in this country.”
The lawyers also agreed that added disclosure requirements, more transparency in tracking campaign donations, and limiting donations by companies with significant holdings by foreign corporations were viable legislative solutions.
A number of Democratic senators got into verbal skirmishes with Bradley Smith, a former FEC commissioner under President George W. Bush and an outspoken opponent of campaign finance reform.
“Venezuela owns Citgo. Why can’t Citgo contribute billions of dollars?” Sen. Al Franken (D-Minnesota) asked Smith.
Smith responded that current laws prohibit foreign companies from contributing to campaigns, but Franken cited an oft-noted loophole that might allow US subsidiaries of foreign companies to contribute money to express advocacy.
A few of the senators also questioned why the ruling was so broad. Kaufman argued that the Citizens United case was part of a pro-business slant on the Chief Justice John Roberts’ court, noting that the Chamber of Commerce has been granted hearings by the Supreme Court in disproportionate numbers, and has also won an overwhelming majority of cases on issues such as antitrust law.
“This is not about small business,” Kaufman said. “This is about very big business because this is about big money.”
Many of the Democratic committee members and the lawyers at the hearing also expressed concern that the Citizens United ruling is part of a troubling trend toward broad rulings that disregard a century of legal precedent concerning the right of Congress to regulate how elections are financed.
“Activism is a hotly contested word, but this is activism by any definition,” said Jeffrey Rosen, a law professor at George Washington University and a widely renowned writer on legal affairs.
Rosen called the decision “highly unpragmatic” and argued that Roberts in particular was guilty in his concurrence of the kind of “judicial activism” that Roberts and many conservatives have decried.
“That vision, that he knows what is right, is at odds with what he said at his confirmation hearing,” Rosen said.
Many committee members were also skeptical that companies would not try to use their newfound rights to their advantage, even though there have been no immediate signals that the funding of federal elections has already been significantly altered.
“Corporations are smart,” Kaufman said. “If Exxon wants to contribute one million, five million, ten million to a campaign, it’s not going to be Exxon’s name at the end. It’s going to be ‘the Clean Government Foundation.'”