Citizens United: I Know I’m Late to This Party, But Man Can I Dance
“Citizens United” has become one of the most reviled terms in the media. The Supreme Court’s decision in Citizens United vs the Federal Election Commission (FEC) caused quite the uproar.
And rightfully so. It was a sweeping decision that wiped away a lot of campaign finance laws.
There is even a movement to create a Constitutional amendment to overturn the ruling.
Many people fear that “corporate America” is now free to control the outcome of elections.
And we should be leery of wealth controlling elections. That is not democratic. Every voice must be heard.
In this context, Citizens United appears to have undermined our very democracy.
But, once we look at the details of the ruling, I think we’ll come to a very different conclusion.
The Lies of Citizens United
There are two misconceptions often made about Citizens United:
- It gave corporations some of the same rights as individuals
- It allowed corporations to donate directly to political campaigns and candidates.
This certainly sounds bad.
It looks as though Wall Street and the super wealthy somehow bought their way into controlling our political system.
But Citizens United did neither of these things.
Lets be clear: Corporations are still banned from donating to political campaigns and candidates.
That is still illegal. Citizens United did not undo this.
Halliburton cannot bankroll Jeb Bush’s campaign.
Also, individual donations to candidates and campaigns are still capped. It doesn’t matter how wealthy you are; you can only give $5,200 to a candidate.
So Rupert Murdoch cannot bankroll Hillary Clinton’s campaign.
Finally, the Supreme Court did not make corporations equal to individuals. If they did, then corporations would be allowed to donate directly to campaigns just like individuals (which they can’t).
So, What Exactly Did Citizens United vs. FEC Do?
Well, to understand that, we need a brief history of campaign finance laws.
I will make this as brief and painless as possible.
Over the last century, more and more laws have been passed with the intent of limiting the wealthy’s ability to influence political campaigns.
The ethos behind this movement was best stated by John Gardner: “All citizens should have equal access to the decision making processes of government, but money makes some citizens more equal than others […] It isn’t just that money talks. It talks louder and longer and drowns out the citizen’s hoarse whisper.”
This resonates with people. And you will hear various forms of this argument today.
And thus, many laws were passed in attempt to curb such influence. And many of these laws were challenged in court.
There are a lot complicated laws and rulings that we could discuss, but lets focus on what really matters to us: Campaign donations and corporations.
The FEC (the government body formed to regulate campaign finances) made a distinction between direct campaign contributions, and “independent expenditures.” This is important, because this is where Citizens United comes in later.
Direct contributions were limited and regulated (as stated earlier). Corporations could not (and still can not) contribute directly to campaigns, and individual contributions were capped.
But back then, the Supreme Court recognized that citizens have the right to spend as much money as they want to “independently” (i.e., independent of a campaign’s direction or influence). Capping these “independent expenditures” would violate an individual’s freedom of speech.
The argument goes: If I want promote my opinion on a candidate, I have the right to do that. And there can be no limit on my ability to do that. Otherwise it would violate my right to freedom of speech… and thus violate the Constitution.
The proponents of campaign finance reform were obviously not happy with this, because people and corporations could still spend millions on candidates.
So, from the 1970s through 2002, a spattering of new and stricter regulations were passed. All with the intent of equalizing everyone’s voice in the election process.
But people found loopholes.
For instance, it became illegal for corporations and other groups to openly say “vote for Bush” or “don’t vote for Bush.”
But people found a way around that (They would say, “Bush stands for bad policies,” or “Bush is good for America…”)
So regulators passed more regulations to cover up the loopholes.
For instance, in 2002, Congress passed a law that barred groups from publishing anything that stated a candidate’s name 30 days prior to a primary, and 60 days prior to a general election. This went for radio ads, TV ads, and left the door open to any other form of publication.
And, corporations were banned from making any independent donations whatsoever.
Okay, here we go. Now to what we’ve all been waiting for…
The War For Election Equality
In 2008, a political activist group called Citizens United produced a movie about Hillary Clinton. She was running for President at the time, and Citizens United was not her biggest fan.
But, because of the new regulations, they were barred from releasing the movie. As mentioned above, the law said they couldn’t state a candidate’s name 30 days prior to a primary, and 60 days prior to an election. And because primaries in the US all happen at different times, it meant they couldn’t show their video for over a year.
So, lets put this in context. The government was stopping a group of individuals from publishing a movie about a candidate they did not like.
One thing we have to keep in mind about this whole process is that regulations beget regulations. As we can see from this very truncated (and grossly oversimplified) history of campaign finance laws, people find loopholes. And when they do that, the government writes new regulations to cover those loopholes. But then people find new loopholes. And around and around we go.
So what started back in 1907 as an attempt to curb political corruption (which was a good goal) had come to a place where people couldn’t release a movie about a candidate they did not like. One made independent of any campaign and with their own money.
A Scary Precipice
The Supreme Court realized that this was not good.
In the court hearings, the lawyers representing the FEC admitted that the current campaign laws being leveraged against Citizens United could also be applied to books in the future.
So, we were one step away from banning books.
“We were one step away from banning books.”
The Supreme Court also recognized that just because individuals choose to organize into a corporation doesn’t mean they lose their rights as individuals.
The Court did not decide that corporations were people. But they said the freedom of speech extended to individuals in corporations.
Lets remember that corporations are not just profit makers. The Chambers of Commerce is a corporation. Non-profits are corporations. Advocacy groups can be corporations.
And at the end of the day, corporations are just a group of individuals that have decided to work together.
The Supreme Court realized that if individuals in a corporation wanted to spend their money in that corporation on independent political ads, they had the right to do that, as covered by the First Amendment.
This is what Citizens United vs the FEC did. It overturned laws that inadvertently led to government censorship, and it recognized individuals still have rights inside corporations
Freedom of Speech vs Equality of Speech
I realize that this still allows the wealthy to have a louder voice in the election cycle.
But the right to the Freedom of Speech isn’t the right to the equality of speech.
In order for us to equalize everyone’s voice, it requires that we limit the voice of others. If our goal is to equalize speech, it means that we have to limit people with louder voices. Therefore, in any attempt to equalize speech, we must violate the Freedom of Speech.
The Supreme Court, when discussing this aspect of their decision, referenced Federalist 10 (which was written by one of the crafters of the Constitution… so he probably knew how to interpret it): “Factions [things like modern Super PACs and corporations] will necessarily form in our Republic, but the remedy of ‘destroying the liberty’ of some factions is ‘worse than the disease.’ . . . Factions should be checked by permitting them all to speak . . . and by entrusting the people to judge what is true and what is false.”
Super PACs and other corporations must have the right to produce whatever content they want about anyone at any time. To do otherwise would be a violation of the Freedom of Speech.
Not only that, but we absolutely cannot support a Constitutional Amendment to overturn the Supreme Court’s decision.
The desire to safeguard elections from corruption is good. As a democracy we need to be ever vigilant. But it would be anti-democratic to overturn Citizens United.
At the end of the day, this means we as citizens need to take responsibility for our nation. If we don’t like something, we need to organize in order to make our voices heard.
But we cannot accept a philosophy that necessitates some violate the rights of others.
We may not like that wealthy people can broadcast their voices louder and farther than ours. But limiting their right to do so opens the door to a much scarier reality: Government censorship.
And once that door is opened, it can only lead to dark places.
For all intents and purposes, we need to be thankful that the Supreme Court saw what was happening.
They safeguarded our freedom as a democracy and made sure our future freedom was protected.
Thank you for reading.
Please let me know what you think in the comments.
For more reading:
Originally published at www.seanedwards.com on August 26, 2015.
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