by SAMAN GOLESTAN
Citizen’s United.1 Those two words evoke very visceral and divisive reactions from many people across the political spectrum. The landmark Supreme Court decision has become a political football over the past two years, and polls show that it is one of the most controversial rulings the high court has issued in recent times. In February 2010, right after the Supreme Court announced its decision a Washington Post-ABC News Pollshowed a remarkable 80% opposed the ruling, and 72% backed new efforts by Congress to reinstate limits on corporate and union spending on election campaigns. It has spurned condemnation and support alike from journalists, academics, and politicians. There is even a grassroots movement to unite citizens (pun intended) for a Constitutional Amendment that would nullify the Supreme Court ruling, rejecting the notion that corporations are entitled to the same free speech protections as people are and reinstating laws that restrict corporate spending in elections. To date, eight state legislatures have called for a constitutional amendment overturning Citizen’s United. Even Ben & Jerry’s has joined the movement with its “Get the Dough Out of Politics” Campaign.
In some ways, Citizen’s United is indeed the culprit it is made out to be. In others ways, it is simply the latest major decision in a series of court rulings loosening elections regulations that have resulted in an unprecedented amount of unregulated money being poured into our national elections. In order to find out what it did and did not do, we need to take a journey through the history of US election law.
Our journey begins in 1907 with President Teddy Roosevelt. He was the first US President to call for a complete ban on corporate and union spending in elections. That very same year, Congress passed the Tillman Act which banned national banks and corporations from contributing directly to candidates. Sadly, it had no practical effect since there was no executive body to enforce the new law. Forty years later in 1947, with passage of the Taft-Hartley Act, unions were also banned from directly contributing to campaigns. For about thirty years that was the law of the land. Then, in 1971 Congress passed the Federal Election Campaign Act (FECA) which established additional disclosure requirements for campaign funding and set individual donation limits. After Watergate in 1974, FECA was amended. The individual donation rate was cut substantially, the Federal Election Commission was created to enforce election laws, and a public financing system for candidates was established.
If only I could say that this is where our story ended. If I could say that we learned our lessons from Watergate and other political scandals and kept tight regulation of political spending in place. Sadly, here we are four decades later with most of the post-Watergate reforms overruled or removed.
The first major removal of election finance regulation came with the Supreme Court’s Buckley v. Valeo decision in 1976, just two years after FECA was amended to address the serious harm done by Watergate.2 The court held that the limits on independent expenditures (money not given directly to candidates or political parties), limits on candidate expenditures from his or her own personal funds, and its limits on overall campaign spending were violations of the First Amendment. Buckley was the first case to equate spending on official campaign or independent third party groups with a protected form of political speech under the First Amendment. The idea that election spending equals protected political speech is wrongly attributed to the Citizen’s United decision; it came from Buckley.
The Buckley decision only strengthened Political Action Committees (PACs) and other third party groups that spend in our elections. The FEC does have some rules and regulations on PACs depending on whether they officially are connected with a candidate or corporation or if they are independent, but there are certain types of spending the FEC cannot restrict because of the Buckley decision.
In 2002, Congress acted in response to the increased spending by third party groups and independent PACs. The Bipartisan Campaign Reform Act (BCRA) amended FECA to address these new issues. BCRA banned ‘soft money’ or ‘nonfederal’ money contributions by individuals, corporations, or unions to national political parties intended to influence state and local elections. It also banned airing issue advocacy ads that mention a candidate’s name that are funded by corporations, thirty days before a primary election or sixty days before a general election. Issue advocacy ads are advertisements that do not directly encourage voters to support or oppose a candidate, “Vote for Candidate Obama/Romney,” but instead focus on an issue. Critics say these ads substantively are no different, and the only thing someone making an ad needs to do is take out a few “magic words” to turn a candidate ad into an issue ad, thus changing the type of restriction placed on it.
Citizen’s United sued the Federal Election Commission because it wanted to air ads for its thirty minute anti-Hillary Clinton documentary during the 2008 presidential election. The case made its way to the Supreme Court. In a 5-4 decision the Court held that: 1) the government may not restrict political speech on the basis of the speaker’s corporate identity, 2) the statute barring independent corporate expenditures for electioneering communications violated the First Amendment, and 3) the disclaimer and disclosure requirements of BRCA did not violate the First Amendment.
Some of the basic ideas embodied in this ruling paradoxically are upheld as issues of free speech and fundamental to the Constitution, but they also threaten to undermine some of the founding principles on elections and our democratic ideals. The aftermath of Citizen’s United will be better understood after the 2012 election. I will dig into the numbers after November, but until then I leave you with this thought from our nation’s 32nd President:
The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is fascism – ownership of government by an individual, by a group, or by any other controlling private power. –Franklin Delano Roosevelt
1 Citizen’s United v. Federal Election Commission, 558 U.S. 310 (2010).
2 Buckley v. Valeo, 424 U.S. 1 (1976).