Anyone paying attention to the 2012 campaign understands that it was supercharged with high monetary spending to all major parties and candidates. Most Americans do not know why this is, or the reasoning behind the sanctioning of big money in politics. It was a Supreme Court case in 2010, Citizens United v. FEC, which entirely changed the way that money works in U.S. politics. The Supreme Court ruled that it was unconstitutional to limit the free speech of corporations and organizations in political election fundraising. This allowed corporations and people to contribute practically unlimited amounts of money to “super PAC’s” in the 2012 campaign. Citizens United allowed for the creation of “Super PAC’s,” or political action committees, which can receive unlimited donations from disclosed corporations, organizations and individuals. In addition, they can give unlimited sums of money to advocate for candidates or oppose others, although Super PAC’s are prohibited from giving money directly to candidates (Opensecrets.org). According to The Wall Street Journal’s website, Super PAC’s spent $567,498,628 in total on the 2012 presidential election (disclosed expenditures) (projects.wsj.com).
Many people, like the Free Press movement, argue that the ‘Citizens United’ case is unconstitutional in that it inhibits the citizens’ free speech rights guaranteed by the First Amendment of the U.S. Constitution. Barnie Frank in particular tried to initiate a proposal with House Democrats that would tax these corporate political expenditures and put laws in place to “ban foreign corporation” from spending on elections (Grim). Republicans in the House of the Representatives have filibustered attempts to have a vote. Many people (like in the Huffington Post article above) react by saying that Citizens United repealed “over one hundred years of law”, but the Supreme Court decision is a little more nuanced than that. It involves the conciliation of many principles that resulted from a series of Supreme Court decisions in the 20th century (namely Buckley v. Valeo (1976), discussed later). Eugene Volokh, in the Heritage Guide to the Constitution writes, “Despite the originalist debate between Justices Thomas and Scalia, today's free speech and free press law is not much influenced by original meaning. It is mostly the creature of the experience and thinking of the twentieth century, as the Court first began to hear a wide range of free speech cases only in the late 1910s” (Volokh).
The ‘Citizens United v. FEC’ case arose because Citizens United (a Conservative advocacy group that produces commercials and documentaries) released the movie Hillary (2008) a day before the Democratic primaries. As defined by McCain-Feingold Act of 2002, the movie and its related ads were considered “electioneering communications,” and were thusly regulated by the same restrictions to any other political speech leading up to an election ("Citizens United v. Federal Election Commission."). When the case reached the Supreme Court, they ruled (in a 5-4 vote) that the campaign spending limits of the McCain-Feingold Act (also known as Bipartisan Campaign Reform Act) were unconstitutional, and this led the way to legalizing unlimited donations to special “super” political action committees. What the Citizens United case has made permissible is corporate donations to independent organizations. Organizations must have independence, meaning that they cannot be affiliated with a candidate. The law only allows for “uncoordinated” expenditures, which means that the corporations and candidates cannot be in correspondence with one another (Intelligence Squared Debate). In other words, it is illegal to donate money directly to a candidate, but it is perfectly legal to donate large sums to super PAC’s (which have explicit views and openly support a cause). The only people who are really granted with any extraordinarily new privileges are non-profit advocacy corporations (e.g. the Sierra Club, NRA, Planned Parenthood) that use their right to political speech to express their view on relevant issues.
As expected, the Supreme Court has a rigorous logic for their removing limits to campaign spending. The court’s interpretation of corporations as persons in Citizens United is not new. Since the outset of the establishment of the United States government, the corporation (as an entity), has been seen to need similar protections by the law as a natural person would. And for almost as long as it has been implemented, the Fourteenth Amendment has been used to defend the legal rights of corporations. The Reconstruction Amendments ratified after the Civil War, including the Fourteenth Amendment in 1868, intended to protect the rights of freed slaves. The clause at the end of the Fourteenth Amendment reads: “…nor deny to any person within its jurisdiction the equal protection of the laws.” It has been interpreted ever since that likewise corporations cannot be denied equal protection of the laws. In the late 19th century, the corporation was ideal for capitalistic ventures, and the preferred form of budding entrepreneurs. The corporation is what helped millionaires like Vanderbilt and Carnegie to become moguls of their respective industries. The first historical case defining corporate personhood was Dartmouth v. Woodward (1819), which gave corporations the rights to contract. Santa Clara County v. Southern Pacific Railroad (1885) was the first case to recognize corporations as having some of the same rights as individual people, by virtue of having been created by individuals with rights ("Santa Clara County v. Southern Pacific Railroad Company").
In the historical logic of the Supreme Court and Congress, corporations must be treated as persons because corporations are essentially abstracts of the individuals that run the firm. A very clear explanation of the ‘corporate personhood’ logic was discussed by YouTuber 'Liberalviewe (his real name is unknown to me), a lawyer and ACLU activist who talks about current political affairs and media bias. He brings up three fairly strong points in his video entitled “Is It Just Corporate Free Speech?,” in response to people who have seemingly “mischaracterized” the Supreme Court case decision (Liberalviewer). His first point is that corporations need to be legally treated like persons “to be able to sue and charge them of crimes.” The second is that corporations do not have all the rights of people. They cannot marry, be murdered, or have the right to habeas corpus. The principle of corporate personhood is not an absolute one. Lastly, corporations are associations of people, and groups of people must be treated as people. The Supreme Court in the Citizens United case ruled that “the government may not suppress political speech on the basis of the speaker’s corporate identity.”
Although corporations may represent the people who belong to their association, corporate interests are often greater than the interests of the people they represent. We ought to be concerned about whether corporate interests are influencing decisions in Washington D.C and how much influence (or “say”) that they have in Congress. A contemporaneous example is the minimum wage laws which allow fast food companies like McDonald’s to make record profits yearly without paying their employees a reasonable income. The minimum wage has not modified with the rise of inflation, so it no longer constitutes a living wage. Some wonder if the corporate lobbyists have too much of a stranglehold over politics. It appears as if corporations want to keep the minimum wage low so that they can continue to hire cheap labor. These policies are beneficial for the corporations and their CEO’s; it is clearly not beneficial for America as a whole, socially, politically, and economically (59% of Americans work a minimum hourly wage job (U.S. Bureau of Labor Statistics)). A majority of Americans are convinced that lobbyists in Washington have more influence over policymaking than the peoples’ votes (Rasmussen Reports, "Most Voters Say Lobbyists Part of Any White House Campaign."). Most also support banning the lobbying of business firms that make most of their profits from government contracts (like the big defense firms i.e. Northrop Grumman) (Rasmussen Reports, "65% Say Ban Lobbyists for Firms That Live Off Government.”). Many fear that our political-economic system is too entrenched with “crony capitalism.” For some this is enough evidence to suggest the “appearance of corruption.”
Many agree that public funding of elections would be the answer to the problem of overwhelming political expenditures. Of course, there is a severe lack of public funds because it has not been well supported by the taxpayer checkoff in the last four decades. Public funding was first proposed by Theodore Roosevelt in 1907, who “recommended public financing of federal elections and a ban on private contributions” (fec.gov). Lawrence Lessig (one of the founders of Creative Commons) is a supporter of the Fair Elections Now Act, which would enact citizen-funded elections for Congressional elections. This would lessen the influence of big donors in order to increase the number of small donors (contributing up to $100). Under the Fair Elections system, donations given to candidates would be matched by the Fair Elections Fund $4 to every $1 spent ("Fair Elections Now- Money in Politics.").
There are a considerable number of common misconceptions about the Citizens United ruling and its effects on the political system. Most of the confusion is understandable because the law is not distinctly clear. The particulars of the case are never really explained that well in the media, and rarely discussed in a non-partisan way. There is a lot of misunderstanding about some of the key components to campaign finance law. The following is a list of the types of donations that are allowed in the presidential election and what restrictions apply to each:
1) Individuals can give up to $2,600 to any candidate (or all candidates) in the presidential election. In addition, to quote the Federal Election Committee’s website, “You may contribute up to $30,800 a year to a national party committee and up to $10,000 a year to a state or local party committee” (fec.gov).
2) Individuals can donate unlimited money to Super PAC’s.
3a) Individuals can donate to organizations- also known as “secret funds.”
3b) Corporations, 527’s, “advocacy groups,” and organizations can donate to Super PAC’s. *In contrast to what some have said, Citizens United did not overturn the 1907 Tillman Act which “prohibits corporations from directly contributing to candidates” (Liberalviewer).
The crux of the campaign finance constitutionality debate lies in the interpretation of the First Amendment (“Congress shall pass no law…abridging the freedom of speech, or of the press…”) in the context of the Framer’s original intent, and modern electioneering practices. The typical argument from supporters of Super PAC’s (in Robert Rosencranz’s words) is that, “in order for speech to be heard, it needs money behind it” (Intelligence Squared Debate). The Supreme Court and Congress have continually agreed on the fact that money is a physical requirement for running a campaign and broadcasting ads. Since all political speech is protected by the First Amendment, raising money for political ads is defined as free speech. People often cite the idea that due to the outcome of the Citizens United case, money is now equated with speech. Although this may be somewhat true, it does not clarify the actual nature of the ruling. Money does not literally equate with free speech in the wording of the law. Rather, election advertising (which requires money) is a form of free speech expression, of which one’s right cannot be denied.
The synthesis of this rationale stems from Buckley v. Valeo (1976), which concluded that “some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct, and some involve a combination of the two.” Also, “this is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech” (Petoskey). This is the vital argument that money is crucial for political campaigning. Often cited as supporting evidence of this fact is the amount of money spent on elections, and the amount of time politicians spend fundraising. If corporations are persons with free speech rights, then giving money donations to super PAC’s is automatically protected under the First amendment. One key ethical problem is the issue that corporations may be speaking for their shareholders, and possibly their consumers, because money is considered speech. That is one of the reasons that large corporations tend to give relatively equal sums of money towards both Republican and Democratic parties, attempting not to alienate their base or make any public political affiliations (Rosencranz).
Without getting too deep into the history of Free Speech rights in America, there are some important aspects that make up the application of First Amendment law as it stands today. Of course there are standard exceptions to Free Speech such as incitement, lying, obscenity, profanity, threats, or misleading commercial advertising. The classic example is how one is not allowed to yell “fire!” in a crowded theater. Free Speech also guarantees protection for hate speech and radical ideologies, such as those expressed by Neo-Nazis, Holocaust deniers, the Westboro Baptist Church, etc. The First Amendment protects speech for speakers and writers, as well as other forms of expression. The Heritage Guide to the Constitution explains, “It also extends to conduct that is necessary in order to speak effectively, as, for example, using money to buy a public address system or to buy advertising. Restrictions on independent campaign expenditures, for instance, raise First Amendment problems because restricting the use of money for speech purposes is a speech restriction.”
The main argument against the Citizens United case is fairly straightforward. We need less money in politics. As Robert Rosencranz says in the introduction to “Two Cheers for Super PAC’s,” an Intelligence Squared Debate, “Their best argument, it seems to me, is that things have gotten out of hand. There’s just too damn much money involved in politics, and we’re drowning out the voices of people that can’t be heard because they don’t have access to money to get on the airways.” Super PAC’s are given individual contributions, which is then pooled together to support a single cause. These Super PAC’s are acting as agents to allow rich individuals to donate exorbitant amounts of money. One huge criticism of campaign finance spending is the problem of anonymity. Obama is one of the hardest critics of the Citizens United case ruling for this reason. He has repeatedly asserted that undisclosed donations need to stop.
Some have proposed that a Constitutional amendment is necessary in order to clear up the language of the First Amendment. These proposals, supported by groups like Move To Amend, Free Press and Democracy Matters, intend to specify that “the rights protected by the Constitution of the United States are the rights of natural persons only” (wethepeopleamendment.org). This amendment proposal is similar to the debate over gun control in how some argue that the Second Amendment is antiquated and obsolete. Others say that the proposed amendment is not feasible, and that we ought to not tinker around with the First Amendment.
The one problem with discussing the effect of the Citizens United case is that it is relatively new. The only real conclusive source for studying the impact of unlimited campaign contributions is the 2012 election. One thing we know positively is that more money was spent in that presidential election than ever before. The two biggest receivers of campaign contributions were Republican party nominee Mitt Romney, and Democratic party candidate Barack Obama who was running for re-election. Mitt Romney’s overall spending for the 2012 campaign totaled $1,238,072,571. Barack Obama was close behind with $1,107,080,937 (www.opensecrets.org/pres12). These figures only give one an idea as to the enormity of the donation sums. We find the real scope of Citizens United’s effect in understanding who the big spenders are. A full detailed list of all disclosed expenditures can be found at OpenSecrets.org, the Center for Responsive Politics. Sheldon and Miriam Adelson (Las Vegas Sands Corp., and Adelson Drug Clinic, respectively) each gave $15 million to Restore Our Future super PAC (supporting Mitt Romney) and $11.5 million to American Crossroads (opposing various Democrats) (projects.wsj.com/super-pacs/). Restore Our Future, Priorities USA Action (Obama-supporting super PAC), and American Crossroads were the top three Super PAC’s in 2012 (wsj.com/).
An inherent flaw of the campaign contribution system is that it serves the wealthy. The public has the opportunity but no means to have a political message of their own. Only 0.53% of US adult population donated $200 (the min.) or more in the 2012 election cycle, which means that more than 99% of the electorate were shut out of this form of political speech. One could relate this disparity in numbers to another pressing issue in America: economic inequality and the distribution of wealth. As Pew Poll’s 2011 data suggests, the wealthiest 7% of Americans (household net worth above $889,279) owned 63% of the nation’s overall household wealth (Fry). Average Americans no longer feel like they have a role in the political system and this too gives wealthy individuals a significant advantage over the general public to participate in the various forms of political expression in the mass media.
Candidates who win elections are often the ones who receive the most donations, because of their favorability. As much as the argument is voiced, the converse is not true. More spending does not always necessitate more votes. Regardless of the seemingly ridiculous amount of money donated to the Republican party, big money spending did not guarantee success for Romney’s campaign. Even with Romney outspending his opponent, Barack Obama still carried the election with 332 electoral votes.
On October 8th, 2013, the Supreme Court reviewed McCutcheon v. FEC, a case concerning Alabama resident Shaun McCutcheon who believes that the federal limits on individual contributions are unconstitutional. It has been coined “Citizens United 2.0,” because of the possibility that it could further repeal federal restrictions on candidate and party spending. According to Rose Nimkiins Petoskey and Katherine Hinderlie, “As of September of 2012, [McCutcheon] had contributed over $38,000 in total to sixteen candidates, the National Republican Senatorial Committee (“NRSC”), the National Republican Congressional Committee (“NRCC”), and the Republican National Committee (“RNC"). McCutcheon wanted to contribute to twelve other candidates and to increase his donations to the NRSC, NRCC, and the RNC, but in doing so he would have violated FECA’s aggregate limit” ("McCutcheon v. Federal Election Commission.") Shaun McCutcheon argues that the donation caps ($2,500 for any candidate in an election) are unconstitutionally too low (nytimes.com). The reasoning behind these individual limits has historically been based in the prevention of corruption or “appearance of corruption.” The Supreme Court has determined that individual contributions can have a corrupting influence, and thus have always ruled in favor of the law which stands, including strict restrictions and donation caps. Money cannot be considered speech if it promotes the influence of “corruption,” or even has the “appearance of corruption.” It regards individual limits on donations to candidates or parties, as opposed to the Supreme Court ruling of ‘Citizens United’ which defined limits on money donations (“free speech") from independent organizations as constitutional.
As always, it is difficult to presume how a case is going to be determined in advance of the actual preceding. Case in point, news anchors that are “inside” politics (and the ones that have law degrees) tend to be more careful about trying to predict the Supreme Court’s decision ahead of time (LiberalViewer). Since the Supreme Court has already ruled in favor of campaign spending constituting free speech, it is possible to imagine how they would deliberate over whether McCutcheon is having his free speech rights violated by the FEC’s rules, but there is a precedent. The Supreme Court and Congress have always seen restrictions on individual contributions that may bring about the “appearance of corruption,” because of the rational expectation of politicians to return governmental favors (or “buying influence” on key issues) in exchange for money. It would be unprecedented for them to decide otherwise that individual limits are unnecessarily regulated. In general, the justices must understand that the law should prevent personal (or corporate) interests from overshadowing the public interest. ‘Citizens United 2.0’ has the potential ability to repeal the ‘Citizens United v. FEC’ case, which has spurred activists to make people more aware of the campaign finance issue, but it is unlikely that corporate expenditures in future elections will be challenged. [2018 note: this paper was written in December 2013...in the McCutcheon v. FEC case, the limit on individual contributions was decided to be unconstitutional]
The government and its people request transparency for the entire democratic process. Some would argue that it is the job of the media, if not to uncover the flawed system where money is mixed with politics, then to at least inform the public about campaign spending. To many, transparency seems of utmost significance when it comes down to political influence in our legislative and executive branch. The Citizens United ruling acknowledges, “The First Amendment protects political speech and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages” ("Citizens United v. Federal Election Commission."). This makes clear that the right to anonymity as a donor is not guaranteed by the First Amendment. If the citizens of the United States are to stay informed about money in politics, it stresses the need for adequate journalism (‘free press’ protected by First Amendment). Informing the public should constitute an unbiased reporting of elections, providing equal coverage to every candidate as to elucidate their position on key issues. Good journalism ought to “use the facts to challenge a politician’s bogus claims.” This must also include exposing the money donors and their explicitly stated views. More than ever, we need contemporary “muckrakers” that investigate big donors and expose big money interests and possible corruption.
One legitimate concern is that the excessive amount of airtime dedicated to political ads before elections has created an unbalanced state of affairs on television network news. It has been observed that television networks show increasingly more political ads as more money is funneled into politics. As a consequence, viewers are disproportionately seeing campaign advertising rather than actual news coverage of the election (freepress.net). It begs the question of whether voters can really judge the candidates based on their merits when advertisers control the basic mediums of mass communication. Although one can buy airtime, one cannot buy elections.
What does Citizens United v. FEC mean for a democratic society? The Supreme Court ruled that it would be unconstitutional to prevent corporations (who have some basic rights as persons) from expressing political speech (which is considered impossible without money in our modern technological age). On the other hand, it is a compellingly strong argument that unlimited campaign spending is limiting participation from the general populace. After having given one million dollars to Priorities USA Action Super PAC, comedian and talk show host Bill Maher urged fellow millionaires to “come out of the closet” in support of the Democratic party. His intention of giving one million dollars to “Obama’s Super PAC” was not to serve as a model for other liberals but more to support the democratic side simply to oppose Romney. Maher’s solution is to outspend conservatives, not necessarily by the virtue of supporting Democratic policy but by the virtue of challenging “radical” right-wing views. This is a similar tactic of comedian Stephen Colbert, who started his own Super PAC, ‘Americans for a Better Tomorrow, Tomorrow’, for parody purposes, but also to expose loopholes and shed light on the absurdity of money in politics. It is possible that unlimited spending has actually allowed for more free political speech, despite that only the wealthiest speak the loudest.
Simply having money does not guarantee a win in an election, that point cannot be underscored enough. With more and more corporate money being spent each year in politics, it emphasizes the importance of voting, in electing officials as representatives of the state. If there is any hope in America’s ideal of a democracy, it is in our ability to get involved in the local community and to choose competent leaders. The American people demand a government that they can trust, which means putting regulations on corporate campaign spending. It requires an informed public, an informing free press, and ultimately a society where all ideas can be shared freely.
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