Democrats in the House and Senate are preparing a raft of legislation to blunt the impact of the Supreme Court’s Citizens United ruling, which would allow corporations to use their treasuries to influence elections.

The Senate Rules Committee held a hearing today on the matter, and several Democratic Senators indicated their desire for a change in law to counteract the ruling. Sen. Russ Feingold, whose signature McCain-Feingold campaign finance law was weakened by the ruling, testified today, saying that the Court has “in effect produced a Frankenstein — the people created corporations, but the Court has denied the people the power to prevent corporations from dominating the political system.” He outlined some possible steps. Here’s an excerpt:

“One bright spot in the Court’s ruling was its recognition that disclosure requirements do not violate the constitutional rights of corporations. I have long believed that disclosure is a necessary, though not sufficient, ingredient of campaign finance regulation. After all, Americans have much more important things to discuss around the kitchen table than the latest expenditure reports filed at the FEC, or the even the latest news story based on those reports. But at the very least, we must make it possible for people who have the right to cast votes to know exactly who is trying to influence their votes.

“You and I have discussed other components of possible legislation – a new definition of ‘coordination’, a prohibition of election spending by government contractors and recipients of bailout funds, a tightening of the provision in existing law concerning contributions and expenditures by foreign corporations. I support these kinds of measures. They certainly don’t reverse the Court’s decision; no legislation can. But they may diminish some of the decision’s worst effects.

John Kerry, who also spoke today, made some similar proposals but asked that Democrats “think bigger,” and toward a Constitutional amendment that would make clear that corporations do not have the same free speech rights as individuals.

In today’s polarized legislative climate, getting the required support for any policy to enact a Constitutional amendment – 2/3 votes in both Houses of Congress and ratification from 3/4 of the states – is highly unlikely.

At yesterday’s “Brave New Conversations” event, Rep. Jerrold Nadler dismissed the possibility of a Constitutional amendment, while acknowledging that the “terrible” Supreme Court decision will make it much easier for corporations to overwhelm the process. “There’s nothing inherently wrong with lobbying. Informing members about various bills is important. You can’t know everything. What’s insidious is the campaign finance potential behind the lobbying,” he said. He basically thought that the ruling would make it almost irrelevant for politicians to fundraise, if “a corporation can write a $20 million dollar check” and just swamp them with cash.

While Nadler did not think a Constitutional amendment was going to happen, he did say that a number of Democrats were looking at some policies they could move “in the next 4-5 weeks.” Among those policy ideas were:

1) changing corporate governance laws to give shareholders the ability to approve spending on political campaigns;
2) prohibiting domestic subsidiaries of foreign companies, or companies with foreign ownership, including as little as 5%, to influence American elections;
3) using “stand by your ad” rules to force corporations to say something like “I’m the CEO of Exxon and I approve this message” at the end of any spot;
4) ensure that corporate spending on political advertising was not tax-deductible as a business expense, the way commercial advertising is for businesses, making the spending more expensive.

There are other ideas out there too, like prohibiting any company with a government contract to participate in electioneering (a Hatch Act violation), or offering better access to the public airwaves for candidates rather than corporate ads. But these were the four cited by Nadler.

He is holding a hearing tomorrow in the House Judiciary Committee on the Supreme Court ruling, featuring a panel including Harvard Law Professor Laurence Tribe, Monica Youn of the Brennan Center for Justice at NYU School of Law, Sean Parnell of the Center for Competitive Politics, and Constitutional lawyer Donald Simon. Nadler believes that a law would have to be enacted by the spring to impact the 2010 election cycle. “There’s a strong political motivation to do this… self-preservation is a powerful force in politics,” he said. However, he acknowledged that getting 60 votes to break a Republican filibuster would be difficult.

David Dayen

David Dayen

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