The Balance Between Free Speech And Fair Elections In The Aftermath Of The Citizens United Decision

On January 21, 2010 the United States Supreme Court issued a 5-4 ruling in the Citizens United v. Federal Election Commission case. They ruled in favor of Citizens United allowing corporations and unions to now 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 any similar non-Presidential year elections. This spending was 400% greater than in 2006. 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 Citizen 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.

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 the old days. 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 campaign 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 for the United States. 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 established stronger regulations and enforcement to 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 very early in 2010.

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 limits independent corporate and union expenditures for electioneering sixty days before a general election and thirty days before a primary was unconstitutional. They disagreed with the argument that this electioneering distorts the electoral playing field. They also stated that freedom of speech overrides this consideration. They 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 at the time of the publication of these electioneering events. The November 2010 federal elections 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 expenditures are totally a form of free speech. This view is sacrosanct to them. Unfortunately a constitutional amendment would have no chance of advancing in 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 which 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 business 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.

The Citizens United decision was delivered by way of the five members of the conservative wing of the U.S. Supreme Court. In my estimation this was a very curious ruling. These five conservative Justices constantly preach the virtues of judicial restraint and strict constructionism. 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 a referendum on the economy and how President Obama was handling it. Unemployment remained very high so the nation voted Republican. 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 is. Both sides will be incredibly energized. We will see how fundraising shakes out. I do not like where campaign financing is going no matter what the 2012 election and 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. 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.