Citizens United decision not as consequential as it seems
“It is my belief that there are ‘absolutes’ in the Bill of Rights and they were put there on purpose by men who knew what words meant and meant their prohibitions to be absolutes….[The first Amendment] provides, in simple words, that ‘Congress make no law…abridging the freedom of speech or the press. I read ‘no law abridging” to mean ‘no law abridging.’” — the late Supreme Court Justice Hugo L. Black
On first reading the Supreme Court’s Jan. 21 decision on Citizens United v. Federal Election Commission, which overruled provisions of the McCain-Feingold campaign finance reform act that criminalized union and corporate public advocacy advertisements urging the election or defeat of a federal candidate within 30-60 days of the election, I thought of my favorite quote—the one above—from my favorite Supreme Court Justice of all, Hugo Black.
Writing for the 5-4 majority in Citizens United, Justice Anthony M. Kennedy’s words were consistent with Justice Black’s famous strict construction, “absolutist” First Amendment philosophy. “Under our laws and our traditions, it seems stranger than fiction for our government to make political speech a crime,” Justice Kennedy wrote. There is “no basis for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers.”
Moreover, as the writer of a column called “Purple Nation,” if ever there was a “purple,” “Blue-Red” group of supporters of the majority’s decision—liberal groups such as the ACLU and the AFL-CIO, and conservative groups such as the National Rifle Association and the U.S. Chamber of Commerce—this is it.
Yet the Supreme Court’s decision was strongly opposed by my four favorite liberal Supreme Court justices, with a passionate 90-page dissent written by the greatest one of all, Justice John Paul Stevens. The decision was also criticized by most liberal Democrats, of which I am one, and by President Obama. And most conservatives and Republicans with whom I disagree cheered the decision, privately gloating that the decision will result in unleashing huge amounts of corporate contributions in their direction.
So I am conflicted. I believe in the First Amendment as Justice Black did—no ifs, ands or buts. But I am fearful of the power of big corporate money flooding into the federal election process in the form of advocacy ads, which undoubtedly will not be matched by union-paid ads, which will now also be legal.
However, my hunch that the Citizens United decision is probably going to have a lot less dire effects than liberal Democrats have publicly predicted, and a lot less favorable effects that conservative Republicans are privately saying.
First, corporations who pay for partisan public ads must take into account the possible risk of consumer boycotts and shareholder backlash. This smacks of McCarthyism—and has happened in the last year on both the right and left or positions taken on issues by some corporate executives. Similarly, there are union members who possibly might rebel if their union officers are deciding to pay for advocacy ads that take positions in ads with which some members disagree.
This self-restraint by corporations and unions will occur especially if the regulatory or legislative response is to impose greater transparency for all donations—as Justice Kennedy himself suggested in his decision, perhaps instantaneously on the Internet.
Second, corporations or unions who contribute to certain non-profit corporations or trade associations in the belief this will provide them cover may well be disappointed. The current rules that arguably allow anonymity donors to certain non-profits and trade association could be changed by congressional legislation, replaced by strict transparency for any money targeted for political advocacy ads. To those who argue violation of privacy rights, the constitutional answer should be: you have waived your privacy rights when you choose to donate to help elect or defeat a federal candidate.
If the public is really concerned about reducing the influence of money in politics, there is one way to reduce its impact—some form of public financing of all federal elections. That can be accomplished by the simple idea of requiring a $5 or $10 check-off box to contribute to a public trust fund that would fund federal elections rather than individual contributions. However, this is hardly a clear panacea. It won’t end the influence of independent public advocacy now protected under the Citizens United decision. And experience to date is that participation in the current optional tax credit dollar-check-box for presidential campaigns, which costs taxpayers nothing, has been on the decline.
But with bipartisan support and better marketing, perhaps a $5 or $10 option could be sold. If people are that concerned about the excessive impact of money in American politics—and who couldn’t be – isn’t it worth five or ten bucks per person at least to reduce the impact of much money in politics?
I certainly would check the box. Wouldn’t you?
Mr. Davis, a Washington, D.C., attorney, served as President Clinton’s Special Counsel and a member of President Bush’s Privacy and Civil Liberties Oversight Board from 2006-07. He is the author of “Scandal: How ‘Gotcha’ Politics Is Destroying America.”
This column also appears in The Hill newspaper.
(2 votes, average: 3.00 out of 5)
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Stated limits would not work unless there was a Constitutional Amendment. Again, it would infringe on the scope of free speech. Then of course there would be the inflation factor. The key item should be transparency; then the public could understand who’s buying whom. There should be websites totally devoted to this, for each candidate. Then we could track legislation and connect the dots with the various donations of the special interest groups. I see the Republicans always lambasted as the party of Wall St. and big business, when in fact, it’s probably the Democrats who are, at least in the last 2 election cycles. Let’s have the lies or the truths be there for all to see.
Mccain-Feingold did not prevent Union leadership, or America hating billionaires from funneling millions to support democrat candidates and far left-wing causes. Individuals and groups were able to game the regulation and funnel money through 527 groups like move-on.org.
It is also a myth that corporations give mainly to republicans;just look at one of the architects of our financial ruin , Goldman-Sachs, or rent-seeking corporations such as Pfizer,and one realizes how disingenuous Obama’s comments were to SCOTUS at the SOTU.
I agree other commenters…allow the speech but guarantee transparency of the source.
And if you really want to reduce the influence of big money groups and individuals , reduce the size and scope of the federal behemoth that republicans and democrats have grown for the last 20 yrs; restoring more governance to states and localities.
Your kidding, right? You suggest public financing when Barack Obama famously promised to use public financing, and then broke his promised and raised gallons of money? And fixed his web site to accept credit card money from overseas donors? That’s a joke, right?
Transparency is the key: both for corporations and unions and individuals. Of course then some, like the California guy who made a donation to the wrong side of the the Proposition 8 question, was then hounded out of his job. But, we should all be willing to stand for what we believe in. At the end of the day, people will turn on those who lie.
Quote:
…I am fearful of the power of big corporate money flooding into the federal election process in the form of advocacy ads, which undoubtedly will not be matched by union-paid ads, which will now also be legal.
Please. First off, you expect us to believe that unions won’t be able to match corporate campaign spending after the SEIU spent millions to get Obama elected? We’re not as stupid as you think we are.
Second, why the hell are you “fearful” of corporate money? Do you think that we won’t be able to see through some bogus ad campaign? Admittedly, the results of the last election, where the majority couldn’t see through Obama’s smokescreen, might be a point in your favor. However, that spell is wearing off and the people are recognizing bs when they see it. We see through Obama’s prevarications. We see through the DNC’s horse pucky. We even see through your garden fertilizer. Don’t worry, we’ll see through some corporation’s slick ad campaign. However, we’ll also be able to determine if the slick ad campaign is telling the truth; we won’t discount its message just because you or other leftists tell us it isn’t truthful.
You see, Lanny, we’re big boys and girls and we don’t you or any other leftist looking out for us. What I said above bears repeating: we’re not as stupid as you think we are.
This is a rare time when I find a lot of agreement with Lanny. The core of the First Amendment’s protection of free speech is free POLITICAL SPEECH. Individuals, corporations, unions, associations, etc. who are or who may be affected by government action or proposed government action (that’s pretty much everyone) should have the right to voice their concerns and support or oppose candidates. I assume that many of the “obscenity” free speech cases involved corporations. Did the SC ever say that individuals have the right to free speech that might be seen as obscene, but because corporations are not natural “persons” the First Amendment does not apply to them?
As Lanny says, just because corporations will be able to run ads doesn’t mean that they will….for the main reason that they will not want to offend customers. And whatever ads corporations run better be truthful or lack of credibility in political ads will spill over to lack of credibility in their product ads.
Where Lanny totally loses me is in his last 4 paragraphs on public financing. THAT is NOT the solution, and hell no, I do not and will not check that box. Of course any money that goes from government to candidates comes from taxpayers! Where else (ultimately) would it come from?!? If I want to support a candidate I will contribute to him or her. I would not check a box and allow some of that money to go to candidates I totally disagree with.
“…experience to date is that participation in the current optional tax credit dollar-check-box for presidential campaigns, which costs taxpayers nothing, has been on the decline.”
And there we see in one casual statement the fundamental problem with Washington. How can an otherwise intelligent person write that this “costs taxpayers nothing”? Of course it costs taxpayers. Where do you think the money comes from? Every dollar spent by the government costs the taxpayers something, for the taxpayers provided that dollar.
So when you say, “I certainly would check the box” and then ask, “Wouldn’t you?” I can only respond, “Absolutely not.” It is a small thing, but refusing to check the box is my personal stand against the something-for-nothing philosophy that has brought us to this awful state of federal fiscal irresponsibility.
I do not think this ruling will change much as it is hard to get anymore corrupt than our two parties already are.
It is worse, much worse.
Lanny, as much as I find you to be a rational voice, especially when contrasted in the presence of those more abrasive (initials SH?, I find a big flaw here. Although I’ve never been a part of a union, I’ve managed in union environments. And I’ve worked within 8 different companies from small and private to multi-national. Without firm statistics I can only rely on memory. And as such, it is almost obvious to me that, for the most part, unions are somewhat monoliths in the political sense. And unless dissenting members are not only a majority but somewhat confident and perhaps even emotional (irritated, angry, etc.) as a group, they would likely stay silent. Unions prove frequently they could care less about public opinion.
In contrast, dissenting employees within corporations may be a little less timid even without a majority. But for the sake of argument, let’s say they too remain silent. That leaves the public as the remaining arbiter for corporate behavior. And given recent history, groups with opposing political views have proven on both sides they are willing to TRY and inflict as much damage as they can. Some are successful, some are less so.
Oddly, I think this decision may actually empower unions to increase their influence to a larger degree than corporations. Unions will most likely have no problem endorsing candidates in ads as they do now in other ways. They will continue to take positions on issues. But corporations will most likely promote ideas against issues and agendas primarily, while not outright endorsing candidates as frequently.
The balance could be way off.
The idea that union membership would presure their leadership on whom to support in a political race is a nice theory but has nothing to do with reality. In the real world union members are intimidated into not making their personal views known for fear of repricussions from union management.