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In Blow to Campaign Finance Reform, Supreme Court Throws Out Restrictions on Special Interest Campaign Ads

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The Supreme Court has thrown out part of the McCain-Feingold campaign finance law that placed restrictions on corporations and unions from buying television ads close to elections. Attorney John Bonifaz of Voter Action says that in granting corporations the First Amendment rights of individuals, the Supreme Court is undermining the election process. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The Supreme Court has dealt a blow to campaign finance reform by throwing out part of the McCain-Feingold campaign finance law that placed restrictions on corporations and unions from buying television ads close to elections. Chief Justice John Roberts wrote the 5-to-4 decision. He said the prohibition against corporate ads mentioning a candidate’s name in the days before an election is an unconstitutional infringement on the rights of corporations.

The ruling is expected to affect the 2008 presidential election, will likely encourage a financial arms race between special interest groups. Voting with Roberts was Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy.

John Bonifaz is with us. He’s the Boston-based attorney, legal director of Voter Action, also founder of National Voting Rights Institute, joining us from Boston. Welcome to Democracy Now!, John.

JOHN BONIFAZ: Thank you, Amy. Thank you for having me.

AMY GOODMAN: Can you assess this decision?

JOHN BONIFAZ: Well, this is a ruling that clearly is a blow to those who care about democracy and care about the fundamental constitutional rights of ordinary citizens to participate in the electoral process on an equal basis. It essentially says that corporations can trump democracy, when it comes to these so-called issue ads that are really sham ads that are run to influence an election prior to an election happening, in the days leading up to it, run by corporations with unlimited money in their general treasuries.

We have to remember that these entities, corporations, are state-based, artificial entities that have state-based advantages and are there to make huge profits. And they ought not to be able to influence the election process in this kind of way and displace legitimate democratic governance.

AMY GOODMAN: I mean, the Supreme Court Justice John Roberts wrote the decision and talked a very much — talks about the importance of free speech, that you have to err on the side of free speech. Explain how free speech fits into this picture.

JOHN BONIFAZ: Well, frankly, I think that the court has gotten it wrong yet again on this question. The court continues to equate money with speech in the political process. But beyond that, it gives First Amendment rights to corporations. And these artificial entities don’t have the same, obviously, qualities as you and I do as breathing human beings, and they should not be given those kind of First Amendment protections.

The fact is, is that we need to protect the electoral process and to protect our democracy. And we should not have big money corporate interests drown out the voices of ordinary citizens. The court does not weigh in any way whatsoever the First Amendment rights and the equal protection rights of voters, of people who do not have access to wealth, but yet under our Constitution and our promise of democracy have an equal right to participate. And that continues to be a problem with the court’s jurisprudence in this area.

But I would also highlight that this court ruling effectively overrules a court ruling that just occurred four years ago, in which a 5-4 decision came out upholding the McCain-Feingold law. This was not an exercise in judicial restraint. Far from it, this was a clear attempt by those who have been packed onto the court by the Bush administration to overturn a binding precedent that’s been there for the past several years. And it just shows that these judges and justices will go to no limit with respect to carrying out their political agenda. And I think it’s quite troubling for the impartiality of the court and its responsibility to protect precedent and uphold the Constitution.

AMY GOODMAN: Chief Justice Roberts’s exact words were “The First Amendment requires us to err on the side of protecting political speech, rather than suppressing it. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

JOHN BONIFAZ: Well, again, here, the whole equation of money equaling speech is skewed, number one. And number two, there’s no balancing. Even if one assumes that there are political speech rights on the side of corporations, there’s no balancing whatsoever of the political speech and equal protection rights of those who do not have access to wealth, who do not own corporations, who do not have unlimited general treasuries.

This is really a crisis in our democracy, when we allow big money forces to drown out the speech of ordinary citizens and to effectively undermine one person, one vote. And I think that some day into the future we will recognize that this court was wrong in its ruling, but it has a dramatic impact, certainly, on the upcoming 2008 election cycle, opening up a floodgate of unlimited corporate spending in the days leading up to the election.

AMY GOODMAN: Where do unions fit into this?

JOHN BONIFAZ: Unions are also permitted, under this ruling, to spend unlimited money from their accounts. But I think it’s important to highlight the distinction here between a union and a corporation. The danger here is primarily from corporate spending. Union spending involves individual dues from union members that certainly are amassed together. But corporations have unlimited profits in their general treasuries that they spend. So the vast majority of money that we’re talking about here is going to be spent by corporations and will have a distorting effect on our democracy.

AMY GOODMAN: Let’s talk about the 2008 presidential race and elections in this country. Exactly what effect will it have, since it also looks like talking about those few weeks leading right up to the election?

JOHN BONIFAZ: Well, I think it opens the door yet again for the kind of swift boat ads that we saw in the last presidential election cycle, ads funded by, you know, independent — so-called independent donors that are fueled by wealthy individuals now. Certainly, those ads were not funded by corporations, but we will see, as we saw in this case that dealt with ads funded by Wisconsin Right to Life against Senator Feingold, that there will be many more ads likely to emerge that will be financed in that way.

And I also think it raises the temperature on a different solution here, which is public funding of elections, and it will force candidates to answer the basic question as to where they stand in cleaning up this system and having a full public funding system to do away with the kind of big money influence and disproportionate effect that big money forces have on our electoral process.

AMY GOODMAN: John, you’ve been looking at the privatization of the elections. You’ve been looking at electronic voting machines. Talk about where we are now.

JOHN BONIFAZ: Well, you know, I think we have a continuum here of dangers that we’re facing with respect to our democracy, not only in terms of the way we finance our election campaigns, but also in the way we conduct our elections on Election Day and leading up to it. The fact of the matter is we continue to outsource to private companies many of the facets of how we conduct our elections, and it raises serious dangers.

The most serious danger we’ve seen is the use of electronic voting machines throughout the country. These machines are not verifiable. They’re not auditable. And, in fact, we have people around the country who rightly question the outcomes of our elections as a result of computerized voting.

And I think the danger that we face going into the next election cycle is, yet again, questions as to who actually won based on votes that either disappeared or were not properly counted. And if there’s anything fundamental in the right to vote, the most important is that we ought to have our votes properly counted.

AMY GOODMAN: Well, what about who owns these voting machines? Is the trend — in some states, they’re getting rid of electronic voting machines altogether?

JOHN BONIFAZ: Well, because of activist pressure and voter actions engaged in lawsuits around the country challenging the use of these machines, and because of activist work on the ground, some states are moving away from the use of these machines. But I think we’ve also seen a close link in some places between county officials and these companies and their vendors. Some of them go off and become consultants or work for the vendors after leaving their county post.

And we really have to pay close attention to who is controlling our election process. While, you know, we as a public ought to control our elections, what we’re finding more and more is we are outsourcing to private companies the process for conducting our elections, whether it be from the process of counting our votes to the process of maintaining voter registration databases to electronic poll books to the purging of voters off of voting rolls. All of these questions are serious in terms of the health of our democracy and whether we as a people, as voters, control our elections.

AMY GOODMAN: What about that issue of the purging of the voter rolls that we saw, for example, in Florida? And it’s not only Florida.

JOHN BONIFAZ: It’s not only Florida. And we have to, again, pay close attention to how these purges are done. Certainly, we’ve got to keep lists up to date when people pass away or when people are no longer living in the state. You know, they ought not to stay on the voting rolls there. But we also need to be paying close attention to the purging that is done for partisan reasons. And that also comes in close connection with the whole question of who conducts our elections. We have seen time and time again secretaries of state engaged in running our election processes, but then serving as Katherine Harris did, as Ken Blackwell did, as co-chairs of presidential campaigns. That ought to be barred. We ought to ensure that those who are conducting our elections are conducting them in the most impartial way.

So we’ve really got to have a fight here for election integrity, as well as access to the ballot on an equal basis. And it involves us as ordinary citizens around the country standing up and fighting for that to ensure that it happens.

AMY GOODMAN: You ran for secretary of state in Massachusetts.


AMY GOODMAN: I think most people do not think about secretaries of states of their states having so much power.

JOHN BONIFAZ: Yes. And, in fact, they do. I mean, they are in most states the chief elections officers for those states, and they determine in many ways how the elections are run, what kind of reforms are implemented or not, what kind of ways in which, in some places, secretaries of state engage in blocking the vote or suppressing the vote. And there really needs to be leadership among progressive secretaries of state to lead the way in this fight for our democracy, working closely with democracy activists around the country.

AMY GOODMAN: That famous quote of Walden O’Dell, the former CEO of Diebold, in 2003 in a fundraising letter, saying he is, quote, “committed to helping Ohio deliver its electoral votes to the President next year.” Where does Diebold stand today, and what do you think are the most promising referenda or bills that have been introduced at the state or federal level?

JOHN BONIFAZ: Well, I think one of the most promising things that’s happened in this whole area is what happened in New Mexico, where Voter Action brought litigation and worked closely with activists at the grassroots level to turn around New Mexico and move it to a paper ballot state. New Mexico now is a model for the country, in terms of how we ought to go. Voters mark their ballots either by hand or by non-tabulating ballot marking devices. And we have to have strong audits — no question about it — but these ballots are counted via optical scan machines and can be audited. When we see, with respect to the vote being counted via our computerized voting machines, there’s no way really to audit or verify that process.

Ohio, Florida, California, there’s pressure there to make those changes. Florida has moved closely in that direction. But it’s important to implement that for the 2008 cycle. And this is really a growing movement for democracy around the country, where people recognize they’ve got to stand up and fight to protect the integrity of the vote.

AMY GOODMAN: John Bonifaz, thanks for joining us, founder of the National Voting Rights Institute, now legal director of Voter Action, based in Boston.

JOHN BONIFAZ: Thank you.

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