Citizens United – Part 1

Like most of you, I try and do my civic duty and vote in the major elections.  Since I am a middle class American citizen, I can only donate small amounts of money to my favorite candidate, volunteer for their campaign, and cast my vote in their favor come election day. One would think by doing all of that, your voice would be heard in the political process. In reality, its much more complicated.  The political process today is controlled by big business with lots of cash to spend, and they are heard first.  Granted, political campaigns cost millions to run, and small $100 donations here and there just will not cut it anymore. I accept this fact as reality, but what happened recently with the U.S Supreme Courts 2010 decision regarding Citizens United totally changed the game, and not in our favor.

To put this case into context, you need to understand the history behind this case. During the 2008 Presidential primary, Citizens United, a nonprofit organization, planned to release a negative film about Hillary Clinton. This scathing film was partially funded by corporate contributions, which was in direct violation of “The Bipartisan Campaign Reform Act” (BCRA) and FEC regulations. The BCRA strictly prohibited companies and labor unions from two things. First, they were prohibited from something called “express advocacy”, meaning they could not make the case for one candidate or the other. Second, they were prohibited from airing any “electioneering communications”. This includes broadcast messages that “refer to a federal candidate 30 days before a primary election and 60 days before a general election via radio or television”. Hillary: The Movie, was considered a prohibited electioneering communication, thus a direct violation of the laws. Citizens United challenged these laws, stating they were “an unconstitutional violation of the organization’s free speech rights.”

In 2010, the United States Supreme Court ruled on the controversial case Citizens United v. Federal Election Commission (FEC), 5-4 in favor of Citizens United. What Citizen United essential did was give corporate entities the same rights to political speech individuals have. The precedent ruled that “banning corporations from using money from their general treasuries for express advocacy was an unconstitutional violation of First Amendment political free speech rights”. The court also struck down the electioneering communications rule as it applies to corporations and unions. This case changed the donor rules in two essential ways. First, the court removed the restrictions regarding “express advocacy” and “electioneering.” Now any group can use corporate money to make a direct case to sway your vote right up to Election Day. Second, the old 527 social-welfare plans were made effectively obsolete, replaced by the super PAC. The main difference between a super PAC and a social-welfare group is that a super PAC has to eventually disclose the identity of its donors, while social-welfare groups historically did not.

To answer how we find ourselves in this current political quagmire, we need to go back in time to the 1976 Supreme Court case of Buckley v. Valeo.  For anyone not familiar with the history of campaign finance law, this case upheld financing and reporting rules, which argued, “that dollar limits on expenditures by candidates and independent groups violated the First Amendment’s protection of free speech.” In addition, the court ruled that campaign donations and expenditures were a form of expression, essentially that, “money equals free speech.”  As long as expenditures by independent groups were made independently from a candidate or their committee, the federal government could not limit them.

The 1976 court, headed by Chief Justice Warren Burger (R), said we are not allowed to fight this problem directly because, “leveling the playing field between wealthy donors and the rest of us is not a legitimate reason to limit big money. Rather, We the People can only seek to eliminate corruption or its appearance”. This historic case directly allowed the wealthy to contribute through independent expenditures, without direct coordination with the candidate. So in reality, it was Buckley v. Valeo, not Citizens United v. FEC that made our current and dire situation possible.

One cannot argue that the repercussions from the 2010 Citizens United ruling is still yet to be fully determined. Some individuals view companies and labor unions as artificial legal constructs that are not entitled to First Amendment rights, while others view these entities as legitimate participants in public debate. Whatever your personal view, there is no denying this decision sparked a storm of controversy adding to the growing skepticism in the integrity of our election system. Money buys favor, and those with the most money, receive the most favor. Its as simple as that.

What are your thoughts? Do you agree with the Supreme Court’s decision? 


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