The Problem with Citizens United

Does Spending in Elections Influence Outcomes?

You'll be hard-pressed to find anyone who believes that money isn't absolutely crucial to running an effective campaign for political office. It costs money to rent campaign offices, travel, run phone banks, rent speaking venues, print leaflets, film commercials and purchase television ad time, and otherwise publicize a candidate's message or attack his or her opponent. Additionally, spending by outside groups, most commonly in the form of super political action committees (or super PACs) have had a significant effect in elections. There is an abundance of reporting documenting the influence of these super PACs in our recent elections, most notably in the 2012 Republican Presidential Primary. Examples can be found here, here, here, and here.

Nonetheless, in its 5-4 Citizens United decision, the Supreme Court ruled that there can be no restrictions in political expenditures of third party groups. The decision indicated that anyone or any group, including corporations, wealthy individuals, unions, and so forth, can spend unlimited amounts of money in electioneering communication, including political advertisements, robo-calls, and mailers. In theory, these third party groups (super PACs) are forbidden from coordinating directly with any political candidate or campaign. In practice, however, super PACs have become de facto attack arms of individual candidates' campaigns.

Can a candidate without a supporting super PAC succeed in a major election? The latest GOP presidential primary casts serious doubt on the notion that any candidate could be competitive in a presidential primary without the support of a super PAC.

A Precedent for Restricting Some Political Speech

Supporters of the Citizens United decision argue that spending on ads by outside groups is simply free speech and assert that any limits on speech are unconstitutional. While I do believe that unlimited election-related expenditures should be viewed as free speech, it's worth noting that there are other limits on the First Amendment. Citizens United supporters ignore 216 years of precedent where, as Justice John Paul Stevens observed in his dissent, the Supreme Court has rejected an absolutist interpretation of the First Amendment. Indeed, free speech has been regulated in many different scenarios, which are largely uncontroversial.

Stevens writes: "[The Supreme Court] ha[s] held that speech can be regulated differentially on account of the speaker's identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems."

Anyone who has served in the military knows that their right to free speech is restricted in multiple ways, to ensure proper order, effectiveness, and cohesiveness of the military. The Supreme Court has upheld laws that prohibit the distribution or display of campaign materials near a polling place as well as laws that prohibit federal employees from participating in partisan political campaigns. Also, a person cannot falsely yell "fire" in a crowded theater, potentially causing a lethal stampede, without criminal consequence. Broadcast television stations are prohibited from showing indecent programing during hours when young children are typically awake and are fined when profanity is used.

If there are to be no limits on free speech, would supporters of Citizens United be comfortable with foreigners spending money in our elections? How about multi-national companies?  Many major corporations that were originally founded overseas have U.S.-incorporated branches, which are legal U.S. entities. Would they be content to have groups like the American Honda Motor Corporation or Toyota Motor Sales, USA, Inc. support specific candidates in U.S. elections through super PACs? How about Chinese companies with U.S.-incorporated branches?

As Stevens noted, "the free speech guarantee thus does not render every other public interest an illegitimate basis for qualifying a speaker's autonomy; society could scarcely function if it did." Sometimes there is a valid and vital public interest in regulating certain types of speech and the courts have recognized this throughout our nation's history.

Limiting Influence of America’s Most Wealthy and Powerful is in the Public Interest

Given that the government has limited free speech when there is a significant public interest at stake, we are left to debate whether it is in the public's interest to limit the ability of an extremely small segment of the population, the most wealthy and powerful, to assert even more power, through their greater ability to manipulate information that is presented during elections. Does removing all limits on third party spending in elections have any adverse effect on our country? Of course it does. There is a national interest in trying to limit the ability of an incredibly small segment of the population (truly less than one percent) from spending loads of money, leaving voters to decipher well-financed spin from facts.

Writing for the majority in Citizens United, Justice Anthony Kennedy argued that independent spending does “not give rise to corruption or the appearance of corruption” and “influence over or access to elected officials does not mean that these officials are corrupt.” This is an intellectually dishonest and narrow focus on bribery, which ignores the corrupting influence of money beyond bribery. Large campaign and super-PAC contributors typically get a significant amount of access to candidates and elected officials, enabling such donors to lobby officials for special favors that are out of reach to average citizens. In essence, large donors purchase access to elected officials through their donations, which to most people, typifies the culture of corruption that exists in Washington. The real issue is the ability of moneyed interests to put into office those who support their political agendas or personal financial interests, thereby strengthening their influence grip on power. Relatedly, I think limits on third party political spending should apply equally to all, including corporations, unions, and individuals.

The integrity of our elections is paramount to the vitality of our democracy. Unlimited election-related spending by wealthy organizations and individuals threatens our political system and effectively allows a small minority to govern the majority, resulting in a less democratic system. When the country's most powerful people and companies obtain undue power in the form of unlimited election-related spending, we dilute the influence of the average citizen. A government that is supposed to be of the people, by the people, and for the people is hijacked by a select and powerful few. Life may not be fair, but democratic elections are supposed to be. It is in our national interest to prevent any one organization or group of organizations from becoming too powerful, which is why the Citizens United decision must be overturned.

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