Corporations, campaigns, and the Constitution
Eddie Damstra | Thursday, April 7, 2016
If you have listened to Bernie Sanders speak for more than five minutes, the chances are high that you heard him mention the need for campaign finance reform. And while some positions Sanders holds may be considered distinctly unique from most other candidates, his emphasis on reforming campaign finance laws cannot be classified as such. In fact, many people from both parties have advocated for weakening the financial influence wealthy individuals, corporations and unions may have on political campaigns. However, many of the reservations such people have with the current campaign finance system stem from misunderstandings of a major Supreme Court case and fundamental rights to free speech and expression.
Essentially all those who vocally emphasize the need to radically alter current campaign finance laws are staunch opponents to the 2010 Supreme Court case: Citizens United v. FEC. This is the court case that practically birthed the era of super political action committees (PACs). This case is the rallying cry for many advocates of increasing the policing power of the government when it comes to campaign finance. Immediately following this court case, many people were terrified and told of the immense “danger” that such a ruling would cause. Perhaps most notably, television personality Keith Olbermann said, “This is a Supreme Court sanctioned murder of what little actual democracy is left in this democracy … It is the dark ages; it is our Dred Scott.” While one can recognize this as an obvious utilization of hyperbole and demagoguery, in the days following the decision, this was common rhetoric employed by many media outlets. In fact, there was, and still is, a general sentiment of fear and anger invoked by the Supreme Court’s decision in Citizens United v. FEC. However, many people’s fear and anger is generated by either a misunderstanding of the stipulations of the court decision or — and possibly in addition to — a misunderstanding of the extent of freedom of speech and the importance such a principle possesses.
Citizens United v. FEC was a case that originated when the conservative lobbying group Citizens United was disallowed from airing and advertising a film critical of 2008 presidential candidate Hillary Clinton. Citizens United was prohibited from airing such a film because it violated the Bipartisan Campaign Reform Act, also known as the McCain-Feingold Act. Under the Bipartisan Campaign Reform Act, communications via broadcast, cable or satellite that mentioned a candidate 60 days before a general election or 30 days before a primary election were outlawed. Citizen’s United found such a proscription as a limit to its freedom of speech and consequently filed a complaint. The case eventually reached the Supreme Court, which sided with Citizens United. The majority opinion, authored by Justice Anthony Kennedy, noted, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Corporations are, according to the Court, associations of individuals and are, thus, granted the same First Amendment rights as any single individual would be granted. The Court stated that since money is vital in circulating speech, restricting the amount of money an association of individuals can spend is a direct violation of the First Amendment.
When identifying what Citizens United v. FEC establishes, it is also important to note what the case does not establish. The court case did not suddenly allow corporations and unions to give directly to political parties or campaigns — there is still a ban on such an action in races for federal office. Rather, Citizens United v. FEC allows corporations and unions to contribute money to independent expenditure committees, now classified as super PACs. These PACs have no limits on independent political spending, but may not coordinate with or directly contribute to political campaigns.
Additionally, Citizens United v. FEC does not permit corporations to spend without public disclosure. According to the majority opinion, “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” The Supreme Court, in its decision, established that organizations, comprised of individuals, have a right to engage in political speech and other individuals have the right to listen to what the organizations have to say.
Many people who want Citizens United v. FEC to be overturned claim to champion freedom of speech. The irony of this is found in the restriction of free speech that such a reversal would create. Dictating who can speak about political matters and to what extent fundamentally violates the First Amendment. It is not only the rights of the corporations or unions that are at stake when debating this matter, but also the rights of the voters as a whole. It is the right of the people to be able to hear information and ideas. The free and flourishing competition of political speech is beneficial for everyone, including the listeners. The government should not have the right to limit such competition and subsequently tarnish the democratic process.
I do not doubt that those who desire to reform campaign finance laws have good intentions. In fact, many concerns they have with the current system are valid. While the extent to which corporations can control politicians is often exaggerated, it is undeniably true that current laws enable organizations to purchase influence over government officials. This is certainly a problem, as politicians should represent the interests of their entire constituency, not solely those of a certain union or corporation. However, the solution to the problem is not to strip the constitutional rights of certain groups, but to enhance transparency and voter awareness. We, the people, must demand that politicians and corporations be more transparent with where money is coming from and where it is going. This information is already publicly available, but it should be highlighted more significantly. Voters must utilize such information to make informed decisions on who to support. It is easy to write off the American political system as corrupt and controlled by corporations, but the reality is that the true power in American democracy lies in the hands of the individual voter.
Allowing organizations and individuals to contribute in an unrestricted manner to super PACs does not inhibit freedom but rather promotes it. There is no such thing as too much political speech. We must embrace the ability of corporations and unions to speak politically and listen to what they have to say. The government does not get to decide who are legitimate political speakers. We are all granted the right to engage in political discussion — that is the essence of American democracy.
The views expressed in this column are those of the author and not necessarily those of The Observer.