The United States
Supreme Court issued a 5-4 ruling in the Citizens United v. Federal Election
Commission case on January 21, 2010. They ruled in favor of Citizens United and
now allowed corporations, unions, as well as other groups to directly campaign
for the victory or defeat of any candidates as long as they do not coordinate
with a political campaign or party. They ruled that the provision of the 2002
McCain-Feingold "Bipartisan Campaign Reform Act" that prohibits
electioneering communications by independent organizations thirty days prior to
a primary or caucus and sixty days prior to a general election to be
unconstitutional. This ruling was issued on freedom of speech grounds. The
impact on the 2010 federal elections was immediate and substantial.
Four billion dollars
was spent on these elections far exceeding the spending on similar Congressional
elections. This spending was 400% greater than in 2006. The new outside
independent group spending favored 60 of the 75 new Congressional race winners
who defeated incumbents. Only 46% of these outside groups disclosed their
contributors. The new outside corporate spending clearly favored the
Republicans. Federal election campaign spending has now been turned upside
down. The new questions resulting from this are as follows. What does this mean
for our future elections? What if anything can be done to remedy this
situation? I will begin by giving a brief history of campaign financing and its
regulation including the McCain-Feingold Bill. Then I will offer you a summary
of the Citizens United decision followed by the results and possible solutions.
Finally, I will give you my synopsis of where the balance stands between free
speech and fair elections and what it might mean for the United States and its
citizens.
The need for a large
amount of funds to run election campaigns is a relatively new phenomenon.
Candidates in bygone years were chosen by their political parties behind the
scenes instead of in primaries. Campaigning in the general elections involved
mostly speechmaking, handshaking, attending rallies, and other personal forms
of politicking. These methods required very little in the way of money relative
to our modern campaigns. Expensive radio and television advertising were not yet
a factor. Newspaper advertisements, fliers, and pamphlets were the relatively
inexpensive forms of media advertising used in elections before television and
radio. Television advertisements really took off in 1960. The Democratic
candidate Sen. John F. Kennedy was incredibly wealthy and his father spared no
expense to get him elected that year.
Corporate campaign
contributions actually date back to the 1896 Presidential election. Wealthy
Ohio industrialist and Republican Party Chairman Mark Hanna assessed
corporations a percentage of their capital for contributions to William
McKinley's Presidential campaign. McKinley was the business friendly Republican
candidate who easily defeated the populist Democratic candidate William
Jennings Bryan. Bryan ran a campaign that advocated for a wealth redistribution
plan. The Republican industrialists loathed this plan and were determined to
defeat him. Several campaign finance laws were passed between 1907 and 1947 in
response to events such as this. They limited these types of contributions but
enforcement was always weak.
Congress passed the
Federal Election Campaign Act in 1971 requiring broad disclosure of campaign
contributions. Several amendments to this act were passed in 1974 as a response
to the Watergate scandal. They strengthened the regulations and enforcement of
the original 1971 act. There were many attempts in the 1980's and 1990's to
further reform campaign finance but all were defeated. Finally in 2002,
Senators John McCain and Russ Feingold were able to pass the Bipartisan
Campaign Reform Act (BRCA). The major contribution of this act was to eliminate
"soft money" contributions which went to the national parties instead
of the campaigns themselves. The act also doubled the amount of "hard
money" which individuals were able to contribute directly to a candidate
from $1000 to $2000. This act also banned electioneering by independent
organizations such as corporations
and unions as described earlier in this article. This
act created the campaign finance rules that all federal elections were guided
by until the Citizens United decision.
The United States
Supreme Court turned the world of federal campaign finance on its ear on
January 21, 2010. This was the day they issued their Citizens United ruling.
They ruled that the section of (BRCA) that bans independent corporate and union
expenditures from electioneering sixty days before a general election and
thirty days before a primary was unconstitutional. The conservative Justices
disagreed with the argument that this electioneering distorts the electoral
playing field. They also stated that freedom of speech overrides this
consideration. The Court kept in place the rules for disclosure of the
contributors to these groups though these rules are easily avoided. It was
predicted that corporations would now instead give to trade associations or
other groups that are exempted from these disclosure rules. Critics also argued
that the current disclosure systems are not thorough or rapid enough to educate
potential voters before the elections.
The November 2010
federal election expenditure records show that these new corporate and union
funds shattered non-Presidential year campaign spending records. They also
skewed heavily towards Republican candidates. These candidates proved to be the
overwhelming winners in their contests. Obviously the Citizens United decision
has had a very large and significant impact on our federal elections. This will
also undoubtedly affect local elections adversely. Will this trend benefiting
Republican candidates continue or was this a result of other overarching
political trends? Are there ways to remedy the effects of the Citizens United
decision? Will new disclosure techniques and more rapid response advertisements
be created to counteract these new political electioneering vehicles? These are
some of the questions that I would like to delve into now in more detail.
Many political leaders
have been looking into ways to develop new legislation to get around the
Citizens United ruling. My personal view is that any legislation short of a Constitutional
amendment will be struck down by the United States Supreme Court. The five
conservative Justices are now firm in their belief that any independent
electioneering contributions are unquestionably a form of free speech. This
view is sacrosanct to them. Unfortunately a Constitutional amendment has no
chance of advancing through Congress for the foreseeable future. Therefore
intermediate remedies must be considered.
I feel that the
Federal Election Commission (FEC) must seek to create much stronger internet
disclosure mechanisms. These disclosures must also be timely and not made after
the election. This will at least give the public a point of reference regarding
these electioneering movies and advertisements. Congress should also pass
legislation requiring total disclosure of all donors as well as members of any
groups that participate in this form of electioneering. The FEC should then
develop state of the art monitoring practices for this new world of election
campaign funding. The reason for this is to ensure that these groups and the
development of their projects remain totally independent of any political
campaigns or parties involved in elections. This is also needed because we do
not want political campaigns of any stripe to have virtually unlimited and
unregulated funds at their control.
The largest and
probably most effective counterbalance to this new flood of corporate money
will be similar funds from unions and other groups with opposing policy views.
This money will have to come in large amounts to offset these considerable
conservative corporate funds. Karl Rove's "American Crossroads" group
is expected to raise and employ over one hundred million dollars for the 2012
elections. Unions, Hollywood, progressive philanthropists, and other groups
will have a tough road ahead to keep up with this tsunami of campaign money.
The Citizens United
decision was delivered by way of the five members of the conservative wing of
the United States Supreme Court. In my estimation this was a very curious
ruling. These five conservative Justices constantly preach the virtues of
judicial restraint. Instead they issued this ruling directly against two of
their strongest constitutional tenets. They stretched the interpretation of
freedom of speech from individuals to also include corporations, unions, and
other independent organizations. Secondly, these Justices tend to defer to
legislative actions in their rulings. The argument behind this tendency is
their belief that the Constitution endowed the "People's Branch" with
extensive power to create legislation as they see fit. They seem to have
ignored their judicial restraint tendencies in these areas with this Citizens
United decision. The court decided to throw out Congressional legislation
limiting electioneering that had been upheld by the same court a couple of
times in prior years. Obviously their belief that Congress has primary power to
set legislation was not as predominant as they formerly felt and ruled upon. My
view is that their deeply ingrained, conservative, pro-business predispositions
held primary sway in this critical deliberation. They profess their allegiance
to protecting freedom of speech but their ruling effectively drowns out much of
our political speech.
Marketing executives
know the power of multi-million dollar advertising campaigns. They result in
greatly increased product sales no matter what the quality and the utility of
the product is. A candidate can win any number of debates and have a very
impressive record while still losing handily to a heavily financed opponent.
Voters attempt to make educated choices regarding elections but they lead busy
lives. Television advertising that saturates the airwaves has an enormous
effect on voters who do not have the time or wherewithal to research the
candidates' records and positions on issues. My contention is that this
inundation of independent money is unfair speech because it drowns out other
voices. It most definitely leads to unfair elections.
The 2010 election was
very likely a referendum on the stalled economy and the handling of it by the
Democrats who were in the majority. Unfortunately
the new independent money, most of which was corporate, definitely exasperated
this trend. It helped to get the entire Republican Tea Party base out and it
swayed independents. Additionally, Democrats were demoralized and stayed home
in greater numbers. The 2012 election will be a definitive test to see how
strong this new campaign financing paradigm truly plays out. Both sides will be
incredibly energized. I do not like where campaign financing is going no matter
what the 2012 election and its fundraising results turn out to be. Money from
all organizations is distorting the process. Organizations who contribute
heavily to campaigns have always had an inordinate amount of influence on our
government. This will be exponentially worse now. This trend truly scares me.
We as concerned
American voters and citizens must stay involved and informed about our
political process. Educated voters are the only true antidote to this flood of
money in the current campaign financing environment. Someday we may have a
Congress and a Supreme Court who will pass and uphold an effective campaign
financing bill. However that day does not seem to be on the horizon. So please
stay involved and educated. The alternative will be a government bought and
paid for by Corporate America. This is not a fantasy. It is closer to reality
than most people believe.
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