Point Taken!: Politics and History Faculty Debate Supreme Court Decision

Curry Magazine asked Politics and History Department faculty members Bill Nancarrow and Kathy O'Donnell to share their opinions on the Supreme Court's 2010 decision in Citizen's United v. FEC, and super PACs and their impact. We found them making opposing points and counterpoints (as usual), collegially agreeing to disagree.

Kathleen O'Donnell
Senior Lecturer, Politics and History

The January 2010 Supreme Court decision in Citizens United v. FEC has unleashed fewer controls on special interests, unprecedented spending, and greater secrecy in elections. By holding that corporate entities are indistinguishable from individuals and by striking down a federal ban on independent expenditures, the Court overturned at least twenty years of its own precedent and more than sixty years of federal election laws restricting corporate and union expenditures. This ruling opened the door to lower court and FEC interpretations of the new rules of the game established by the Court, thus creating super PACs, which are a new kind of political action committee.

The Court held that corporations and unions have a First Amendment right to spend unlimited funds on campaign advertisements, provided these communications are not formally "coordinated" with any candidate Some argue that Citizens United has not substantially changed the political arena - super PACs are no different than the 527 groups prominent in the 2004 election. Not exactly. 527s have a choice-they can register as PACs and give directly to candidates under FEC limits, or they could focus on issues, allowing them to raise and spend unlimited amounts. These issue-oriented 527s were not supposed to promote or attack candidates directly. Some went rogue - spending millions and refusing to comply with strict contribution limits and disclosure laws and were found in violation of the law (Swift Boat Veterans for Truth and Moveon.org Voter Fund). Today, because of the Court's decision, the super PAC is a 527 on steroids.

Fast-forward to Court sanctioned secrecy that is even more disturbing. Super PACs can withhold all information about the source of their funds and non-profit organizations can give unlimited sums to super PACs, blocking transparency and allowing individuals to maintain anonymity to avoid
public scrutiny. One example, American Crossroads super PAC created by Republican strategists Karl Rove and Ed Gillespie, receives money from its advocacy nonprofit Crossroads Grassroots Policy Strategies that is not required to disclose donors. The non-profit is not required to disclose funders. As result, the public can remain totally in the dark as to who is behind trying to sway elections. It is not surprising that 527s are now registering as super PACs, contributing to their proliferation to shield individuals and the amount of their donations from public view and protecting them from consumer and shareholder backlash.

The Court has put a price tag on free speech. In the 2010 elections, 72 percent of ad spending came from groups that were prohibited in 2008. The May 2012 numbers are compelling - among the top 10 groups, which accounted for nearly half of all super PAC spending, seven (70%) disclosed nothing about their donors. More than half of the disclosed money came from 37 people giving at least $500,000 each [Open Secrets.org].

Candidates, political parties and the American voter have never been more at the mercy of special interests than they are today. Election law spending limits protected voter voices from being priced out of the market by limiting the use of corporate wealth to corrupt government decisions. Decades of precedent defined the role of corporations in campaign finance that did not allow unlimited spending, identity protection of donors, or the very definition of corporations as being indistinguishable from individuals. The Court's 5-4 decision has turned back the clock and come down in favor of corporations over the interests of the people.

Professor William J. Nancarrow
Associate Professor, Politics and History

Despite the U.S. Supreme Court's theoretical isolation from electoral politics, controversial Court cases are often fodder for partisan campaigns. This year's constitutional piñata is the 2010 decision in Citizens United v. FEC, which overturned 2002 legislation prohibiting corporations and unions from advocating for a candidate via "broadcast, cable, or satellite communication" within 30 days of a primary or 60 days of a general election. Vilified and misrepresented by many in the media, Citizens United overruled Austin v. Michigan Chamber of Commerce (1990), an anomaly in First Amendment jurisprudence, which had allowed the government to criminalize political speech when corporations attempted to exercise that right. Contrary to conventional wisdom, Citizens United broke no new ground in treating corporations as legal persons, did not allow for wealthy interests to hide their identity as campaign contributors, and ultimately will have no influence on increasing the flow of big money into electoral campaigns.

First, corporate personhood, the idea that corporations are to be treated as fictive persons for legal purposes, was hardly novel to Citizens United. The doctrine, which emerged in the 19th century, allows corporations to sue and be sued in court, and to be prosecuted and regulated by the government. It also grants rights, including the right to contract, speak, and to be free from unreasonable searches. In 1886 the Supreme Court uncontroversially recognized that corporations had equal protection rights under the 14th Amendment, as did individuals. More recently, in First National Bank v. Bellotti (1978), the Court held that political speech cannot be criminalized merely because a corporation is speaking. Simply put, individuals lose no political speech rights when they associate in corporate form.

In addition, critics of Citizens United claim that the decision overturned disclosure requirements, thus allowing wealthy campaign donors to secretly fund candidates and policies that align with their interests. In fact, the Court unequivocally held in the second paragraph that "[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether." Advocates of donor disclosure requirements have no beef with the Court-their solution is legislative, not judicial.

Finally, big money in politics is hardly the fault of Citizens United. In 2004, six years before the decision, billionaire investor George Soros, exercising his own free speech rights, spent more than $23 million of his fortune in an unsuccessful attempt to defeat President George W. Bush. While this was not "corporate spending" under Citizens United, it certainly represents big money in politics.

To be sure, money will increasingly find its way into the political system in direct proportion to government's increasing desire to regulate, even micromanage, huge swaths of the American economy. This system invites a corporation to trade campaign contributions for regulations that would give it a competitive advantage. Meanwhile, the very survival of another corporation may hinge on a changed regulatory environment. Politicians cash in on each regulatory transaction. With the laudable goal of "taking money out of politics," proponents of stricter campaign finance laws too easily deny free speech to corporate economic enterprises-whether large (IBM, General Electric) or small (a main street hardware store or software startup). A regulatory environment that encouraged free competition rather than influence peddling would be a far better solution than criminalizing political speech. As usual, more freedom, not less, is the answer.


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