Sunday, October 23, 2011

Citizens United v. Federal Election Commission (2010): Its Meaning and Implications

To sum it up:

Anything that regulates corporate spending on political advocacy either of a candidate or a cause has a chilling effect on the First Amendment, that of Freedom of Speech.

Holding: Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections.

By removing existing restraints on what and when profit-making and non-profit corporations may say during federal election campaigns, the Court has significantly raised the financial stakes for all such elections.

SCOTUS struck down previous law that restricted corporations from using their own in-house cash to spend on politics.  It seems that corporate spending on politics is equal to free speech.  Political spending gets more constitutional protection because more money is greater (not equal) to less money..

Analysis: This was a constitutional decision, laying down (essentially for the first time), a sweeping free-speech right in politics for “special interest” bodies of all types with the concept of “speech” clearly embracing spending money to influence election outcomes.  If individuals have considerable freedom to express themselves politically, corporations, labor unions, and other “special interest” entities now do, too.

Citizens United reversed a previous holding that federal law prevents corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. 2 U.S. C. 441b.  

An “electioneering communication” is “any broadcast, cable or satellite communication” that “refers to a clearly identifiable candidate for Federal office” and is made within 30 days of a primary election, and that is “publicly distributed” which in “the case of a candidate for nomination for President…means” that the communication “[c]an be received by 50,000 or more persons in a state where a primary election…is being held within 30 days.”  

Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneering communications purposes.  In McConnell v. FEC, this Court upheld limits on electioneering communications, relying on the holding in Austin v. Michigan Chamber of Commerce, that political speech may be banned based on the speaker’s corporate identity.

As Roberts wrote in the majority reversing the previous precedent, a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate”.  [B]ecause speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled.

As a result of the Citizens decision, for all intents and purposes the free flow of other people’s money (OPM) in the self-interest of the corporation filling an unlimited amount of cash in the coffers of candidates that will do its bidding is constitutionally protected.  The more money spent, the greater the impact.  

The St. Petersburg blog quoted an Occupy Wall Street sign, “94% of winning candidates in 2010 had more money than their opponents” (10/5/11) in order to dissect it to get to the truth.  Even if the year and percentage given don’t align precisely, the PoliFact background check proves that  more money in the campaign till gives political candidates a huge advantage over their opponents.  At the very least, 85% have prevailed since 2000.

The importance of campaign money and fundraising cannot be overestimated.  By allowing unlimited spending because it is constitutionally protected free speech, it cannot be regulated as “electioneering communications”. The protections afforded such spending under the First Amendment outweigh any petty concerns about the corrupting influence of money on politics.

Another SCOTUS decision, Reynolds v. Sims (1964), seems to contradict the implications of Citizens United.  The justices were deciding an apportionment case in Alabama where in some counties there was 1 representative per x amount of voters and in another there were 14 per x.  They struck down state senate inequality based on the principle of "one person, one vote" , voting 8-1.

In his majority opinion, Chief Justice Earl Warren said, "Legislators represent people, not trees or acres.  Legislators are elected by voters, not farms or cities or economic interests."

I doubt that Chief Justice Warren (who is probably considered a judicial activist by many on the right, although he was appointed by the Republican President Dwight Eisenhower) would equate corporate spending with free speech.  Under the Citizens United decision, some free speech is wealthier and more powerful than others.

If you take into account history and statistics, the fact that unlimited corporate spending on politicians and their causes is protected under the first amendment can seriously undermine our representative democracy of "one person, one vote".  The politician will be more beholden than ever to a large corporate donor with business interests before Congress.  It's as though the justices cannot fathom that dangling unlimited funds without restriction in front of politicians can corrupt them and the process.

The Citizens United decision will only increase the public's distrust and dislike of politicians, politics and the political process.  Congress's approval rating currently is so low it is barely perceptible.  Citizens United seems to take the voter out of the political equation entirely.  He is merely an afterthought, a thorn in the side of the beautiful relationship between a politician and his donor.

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