Citizens United v. FEC Summary of Holding
The Citizens United ruling, like Buckley addressed the constitutionality of certain aspects of a recent regulation on political money and speech, in this instance, the Bipartisan Campaign Finance Reform Act (BCRA), otherwise known as McCain-Feingold. In this case Citizens United was challenging the applicability of three provisions as they related to Hillary: The Movie, which was found by the fact finding body to be made for the sole purpose of discrediting Hillary Clinton as a presidential candidate.
1) §203, which prohibits the production and funding of “electioneering communications” from the general treasuries of corporations and labor unions.
2) §201 which requires the disclosure of donors to such communications
3) §311 which requires a disclaimer when the communication is not endorsed by the candidate.
The Courts holding altered the landscape which had been upheld for 3 elections cycles, including a challenge in McConnel v. FEC which was overturned in part by this decision. First the court struck down the prohibition on funding the communications from general treasuries, overturning two previous decisions and stating clearly that to restrict independent political speech, including multimedia, would be an undue burden on the First Amendment and would be lacking in a sufficient governmental interest in order to overrule this fundamental right. It also reinforced the concept of corporate “personhood” which has always been a point of contention between the wings of the court. Secondly, the court continued to uphold the principle of disclosure confirming the constitutionality of §201 & 311 and setting a consistent and parallel standard with the ruling in Buckley between corporations and individuals, it reasoned that the governments interest in an informed electorate with respect to corporate donors did meet the standard where the interest in limiting contributions did not.
Analysis of these cases in the light of the 2010 election
Often in elections the loosing side will attempt to rationalize their loss in terms of situations beyond their control in order to avoid takings responsibility for the impact of their own actions on the outcome. The eagerness to explain away the swing in Democratic fortunes by blaming Citizens United is one such example. There were far too many factors in the mix in 2010 for the weight of the decision to be truly realized in the course of one cycle. What is clear is that spending increased dramatically from corporate and union entities in this cycle. Nearly a quarter of the money spent in this cycle is considered to be “Personhood Cash” or un-itemized corporate cash from the general treasuries of corporate “persons”.[1] The effectiveness of that cash, however, remains to be truly assessed. The Sunlight Foundation, a left-leaning open-government group, surveyed the effect of Third Party spending in elections by analyzing the top spending groups in the elections.[2] What is most striking is the fact that exclusively Democratic groups such as the League of Conservation Voters and the AFSCME sunk large amounts of cash into Democratic candidates both lost over 70% of their races. However, some of the Republican groups, most notably the Republican Senatorial Campaign Committee, lost a majority of their races despite being one of the biggest spenders.
I think that the knee-jerk criticisms would have existed even if the Democrats had somehow maintained control of the house, indeed even if any more than a handful of Democratic incumbents had lost their seats. These arguments were pre-prepared and began almost as soon as the decision came down in January. The assumption of a cause and effect relationship between the most expensive election in history ($4 billion) and a return to Republican Control in the House assumes many things which are mere suppositions and in some cases outright wishful thinking. I think it is important to address some of the factors outside of Citizens United in order to truly assess the truth of these assumptions.
First, there is the ballooning cost of elections as a whole. Over $2 billion dollars was spent on the Presidential election of 2008 alone[3], $1 billion in 2004, $650 million in 200, and $490 million in 1996[4]. Elections need more and more money and, in classic American style, where there is demand, someone will provide the supply. In this instance, there is an increasing demand for media saturation, the rise in early voting, the proliferation of internet campaigning and the diversity of methods required to reach different demographics (direct mail for older voters, TV for baby boomers, internet for the youth) have created an endless maw required for message generation and effectiveness. The gaps that campaigns can not fill with their limited resources are bound to be filled one way or the other by special interest groups and corporations which share their goals on various issues.
Second is the sheer inevitability of corporate involvement. Corporations have been deeply involved in the function and operation of elections for over 150 years. When the government closes the door to one window of electoral finance, corporations generally blow a hole through the wall and call it a window. The perfect example of this involves the very law challenged by Citizens United. Almost as soon as the BCRA was enacted, corporations and special interest groups began using loopholes. The most famous was the 527 groups. In 2004 accusations went both ways about these large, unregulated groups which were devoid of responsibility to both the government or the public. Republicans were hit over and over by Moveon.org, John Kerry received harsh treatment from the “Swiftboat Veterans for Truth”, this loophole even gave rise to a common nickname for irresponsible and unaccountable attacks from questionably funded groups: Swiftboating. Regulation of corporate contributions is not and never has been an effective strategy. BCRA was supposed to limit the (questionable) level of corruption created by this sort of funding regieme, but 2008 was called by some pundits as the most special interest heavy presidential race in history.
Third are the natural tendencies of American elections. As is common knowledge, with the exception of 2002, the ruling presidency traditionally loses seats in off-year elections. Following “regime change” elections (elections where parties change following 2-terms or more of being out of power, those seat losses are often heavy and pronounced (1982, 1994 being the most prominent). This election was not uncommon and followed a pattern set by both Reagan and Clinton.
The biggest concern is the so-called “disclosure hole” of trade organizations and other tax exempts. While Citizens United strongly and vociferously upheld disclosure as being in the absolute interest of the electorate, there is a loophole in the system which allows for “donor confidentiality” in the donations to trade organizations, such as the American Association of Realtors and the National Education Association. The DISCLOSE act, which was proposed but tabled before 2010 and is not looking favorable in the next Congress, would require these disclosures and close this loophole. This was also important in the discussion of the Chamber of Commerce and its refusal to disclose donors when asked by the Obama Administration. I think it is a favorable direction but only if it is the “disclosure only” version being touted for the lame-duck session in congress[5] and not the “backdoor BCRA” that the original draft was which contained far more than mere disclosure provisions and included other attempts to reinstitute the very restrictions rejected by the Court. The disclosure provisions of the BCRA and the earlier acts reviewed in Buckley have been held in high esteem by most justices. They reject any notion of “intimidation” as a bar to disclosure and support transparency as the ultimate equalizer in campaign donations. Scalia said in his concurrence for the first disclosure care post-Citizens United:
"There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously(McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."[6]
