A Legislative Fix to Citizens United

Since last week’s Supreme Court decision freeing corporations to spend unlimited sums to influence elections, there’s been a great deal of debate about what Congress, short of amending the Constitution, could do to prevent the nation’s big businesses from buying even more influence in Washington than they’ve already got.

Today, Yale law professors Bruce Ackerman and Ian Ayres offer a solution. Writing in The Washington Post, the campaign finance reformers propose a new statute to keep the financing restrictions in place for any companies doing business with the federal government (i.e., most of the country’s biggest corporations). Using the drug lobby as an illustration, they explain:

Federal contractors already are not allowed to “directly or indirectly . . . make any contribution of money or other things of value” to “any political party, committee, or candidate.” This provision arguably bars Big Pharma from launching a media campaign in favor of a candidate who supports its special deals, thereby “indirectly providing” the candidate something “of value.” But it doesn’t cover the case in which contractors threaten to spend millions to oppose senators and representatives who refuse their excessive demands.

There is a need, then, for a new statutory initiative: The same anti-corruption rationale may prohibit contractors from spending millions in favor of candidates requires a statutory prohibition on a negative advertising blitz.

It wouldn’t be difficult to imagine, for example, the drug industry going after Sen. Bill Nelson (D-Fla.), who’s been pushing a proposal to empower states to negotiate pharmaceutical prices for their lowest-income seniors. (The prohibition on those negotiations has been a cash cow for the drug companies.)

Ackerman and Ayres predict that their proposal would withstand the scrutiny of even the conservative-leaning Supreme Court.

The Roberts court is skeptical — to put it mildly — of campaign finance restrictions. But it is still highly unlikely that the justices would strike down a law targeting federal contractors. All nine recognize that Congress may restrict free speech when there is a significant risk of corruption. That risk is obvious when corporate speakers are simultaneously doing business with the government.

Of course, with just 10 months to go before November’s midterms, Congress would have to act quickly — not something it’s exactly known for.