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Ann Woolner
Hillary Movie Ensures Bad Viewing, Worse Campaigns: Ann Woolner

Commentary by Ann Woolner


Sept. 11 (Bloomberg) -- Washington wants to come between me and my doctor, a television commercial warns. I suspect the group that bought the spot worries less about my well-being than its own.

The ad discloses the sponsor’s name but not what is at stake for those who shelled out big bucks to produce it and air it. What return on that investment do they expect? Who knows?

In states with no-holds-barred judicial races, you may see a commercial that slams a judge for freeing some child rapist when the sponsor’s true interest in the incumbent’s future is pecuniary. Judges mostly get targeted by business groups and plaintiffs’ lawyers for their rulings on damage awards, not their views on criminal law.

Now it appears that future congressional and presidential races could become wilder and less responsible, as unimaginable as that may be. At an extraordinary argument this week, U.S. Supreme Court justices sounded poised to undo decades of election law and remove at least some barriers to corporate spending on federal elections.

The only question is how widely they will open the floodgates. Would any corporate entity be allowed to spend unlimited funds on political advertising as long as it doesn’t coordinate with a candidate’s campaign? Or will the reins be lifted only on certain types of groups, such as non-profit advocacy groups that accept corporate donations?

Either way, I find the disregard for precedent disturbing, especially as it comes from those who claim to be judicial conservatives.

The Deepest Pockets

More troubling is the prospect of allowing the deepest pockets to have the most to say about who gets elected to federal office. Whether business or labor, it isn’t enough that they can wine, dine, lobby and, through political action committees, max out on campaign contributions.

That already gives them more access to plead their case than the rest of us get and, at worst, lets money buy elections and, through them, public policy.

Now, the Supreme Court sounds ready to let corporations pour funds into ads that pummel candidates who won’t give them what they want and promote those who will.

A majority of the justices signaled as much earlier this year when they asked for a new round of arguments in a case that had raised narrower issues. Now the court is weighing reversing a 1990 decision that followed a line of court precedents dating back more than a century.

Corrosive Effects

In the 1990 case, the high court recognized “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.”

Kiss that reasoning good-bye. Even the government’s lawyer, U.S. Solicitor General Elena Kagan, said she wasn’t defending the spending limits on those grounds any more. Under the circumstances, she couldn’t.

So, consider what will happen if the court unleashes corporate spending on political campaigns.

The lawmaker now considering health-care reform already knows that the monied stakeholders, say hospitals or insurers, are buying megaphones and drowning out those with fewer funds to make their case to voters back home.

If the justices rule as expected, senators and House members would surely fret, also, that if they don’t toe the line, they could get slammed by the sort of hatchet-job “documentary” that lay at the heart of this court case, “Hillary: the Movie,” produced by Citizens United in Washington.

Purely Coincidental

It won’t much matter whether the ads are accurate. Nowadays, any connection to the truth that political advocates manage is purely coincidental. It’s the volume that matters, and the capacity to scare and anger people, judging from the current health-care debate.

But here is the worst of it for me: The corporations have the First Amendment on their side, and I do love the First Amendment.

To limit free-speech rights, the government has to show a compelling reason and the remedy has to be narrow.

Kagan had a tough time persuading the justices this week of a compelling reason, especially after abandoning the argument about the corrosive and distorting effects of big money on politics.

So what we are looking at is whether the court will order a minor or major unleashing of corporate spending in campaigns.

Encouraging Speech

Either way, I’m reminded that free-speech advocates have a way to combat speech they find fallacious or deceitful short of shutting it down.

“The remedy to be applied is more speech, not enforced silence,” as Supreme Court Justice Louis Brandeis put it in a 1927 case.

So, how about this? If some corporate-funded interest group wants to air ads that trash or trumpet a candidate, make it disclose how much money its top three corporate contributors stand to lose or gain based on the incumbent’s record or the challenger’s promises.

It would be like drug advertising, where the company has to read off the side effects of the medicine it just touted.

If Exxon Mobil Corp. launches an ad campaign to oust lawmakers who support cap-and-trade energy bills, fine. But tell me what Exxon’s number-crunchers figure the law would cost the company.

OK, so maybe enforced speech, to scramble Brandeis’s phrase, isn’t entirely practical.

But the point is this: If the Supreme Court lets corporations enter the crowded, noisy field of political advertisers without any attempt to hold them accountable, then be prepared for more self-serving commercials that only pretend to be aimed at promoting the public good.

And be prepared for elected officials to cede even more ground in public policy to those who can pay for it.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.

Last Updated: September 10, 2009 21:00 EDT