Construction Literary Magazine

Fall 2020

Democracy For a Price

Democracy For a Price

Photograph via Flickr by Phil Roeder

I. Introduction

Anyone intently following the Republican primary couldn’t help but notice the provocative television and radio spots in Iowa, which attacked former House Speaker Newt Gingrich for his work with mortgage giant Freddie Mac. These were followed by attack ads in South Carolina that skewered Mitt Romney as a “raider” for his work as the head of private investment firm Bain Capital. More interesting than the substance of these charges, however, is that the Romney and Gingrich campaigns, as well as that of former candidate Rick Perry, did not formally coordinate with the groups that funded these ads, known as Super Political Action Committees (Super PACs). With many political observers placing the final price tag on the 2012 presidential election at well over $1 billion, not to mention countless House, Senate, state and local contests, these “independent” campaign spots by Super PACs are certain to flood the airwaves throughout the year. To understand how money shapes our political system today, it is necessary to examine the 2010 Supreme Court decision Citizens United v. Federal Election Commission.

II. The Case

In 2008, Citizens United, an independent political organization not formally affiliated with any candidate or party, was planning to run a documentary film critical of then-Senator Hillary Clinton, who was running in the Democratic presidential primary. This movie did not formally call for Clinton’s defeat, but rather highlighted certain alleged scandals that Senator Clinton and President Clinton were involved in.

The Federal Election Commission (FEC) restricted the airing of this video, classifying it under the category of campaign materials that were forbidden under the Bipartisan Campaign Reform Act (also known as the McCain-Feingold bill). Citizens United sued in the Washington D.C. Federal District Court. This court agreed with the FEC, holding that the film Citizens United hoped to air conflicted with the Bipartisan Campaign Reform Act. The Bipartisan Campaign Reform Act was a 2002 bill that, among other provisions, sought to limit independent political spending on “issue ads,” which are paid radio and television ads that discuss a specific candidate’s actions or stances on particular political issues without explicitly advocating for the candidate’s election or defeat. The Act restricted these ads for 30 days before a primary election and 60 days before a general election. Additionally, this lower court believed that the airing of the film ran afoul of the Supreme Court’s 2003 ruling in McConnell v. Federal Election Commission. The court noted that in McConnell the Supreme Court had upheld parts of the Bipartisan Campaign Reform Act that restricted independent electoral spending by corporations and unions.

Citizens United appealed this ruling up to the Supreme Court, arguing that the Bipartisan Campaign Reform Act constituted unconstitutional restrictions on the First Amendment rights of citizens, while the U.S. Solicitor General (who represents the position of the federal government before the Supreme Court) argued that under the provisions of Citizens United, the government might have the power to restrict publication of a book that was produced by an independent political organization during a campaign. After hearing a second round of arguments on the question of whether the Supreme Court might need to overturn existing precedent, including McConnell, the Supreme Court handed down a ruling in January of 2010.

III. The Decision

Writing for the majority in a 5-4 decision, Justice Anthony Kennedy wrote that forbidding independent expenditures by corporations and unions violated the First Amendment of the Constitution, stating, “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.” Kennedy went on to overturn the ruling of his own court in the 1990 case of Austin v. Michigan Chamber of Commerce, which had upheld state restrictions on the use of corporate treasury funds in political campaigns. The Court’s ruling did, however, continue the disclosure requirements of the Bipartisan Campaign Reform Act, thus mandating that the identities of donors to Super PACs be disclosed. Four justices dissented in the case, led by Justice John Paul Stevens, who noted, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” In other words, the majority’s ruling could further the perception of undue influence of moneyed interests within the American political process.

IV. The Aftermath

Citizens United has further hastened the commodification of political debate in the United States, whereby freedom of speech entails the freedom to spend, and thus gives a greater voice to the wealthy. While the concept of campaign funding as a form of speech was first codified in the 1976 Supreme Court decision of Buckley v. Valeo, at that time, the Court still upheld limits on contributions by individuals to political campaigns, maintaining at least a pretense of limitations on the power of money in politics. Citizens United, while it does not affect restrictions on direct donations to campaigns, represents a significant departure from the spirit of Buckley, which viewed monetary speech in politics as necessitating significant restrictions. As election law expert Richard Hasen of Loyola Law School observed, Citizens United “increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality.”

V. Super PACs

Citizens United purports to allow unlimited corporate and union donations to independent political action committees (Super PACs), that is, those that are not actually controlled or operated by a political candidate or party, and technically act independently of a candidate or party. However, in practice, these Super PACs are almost never truly independent from a campaign, and thus, Citizens United functions to create a loophole that allows unlimited donations to, and thus unchecked influence on, candidates by wealthy corporate donors.  Super PACs are frequently headed and staffed by a campaign’s former staffers. For example, the Super PAC Restore Our Future, which developed ads beneficial to Mitt Romney, was founded by Romney’s attorney from his unsuccessful 2008 presidential run, while the Super PAC backing President Obama, Priorities USA Action, is also headed by former Obama aides, and will actually have current Obama campaign staffers appear at events. The lack of real independence of Super PACs was brilliantly mocked by Comedy Central television host Stephen Colbert, who announced that he was running in the South Carolina GOP presidential primary and handing over control of his Super PAC to fellow comedian Jon Stewart.

VI. The Money Factor

While Citizens United has been in effect for just two years, its pernicious effects are quickly becoming clear. As noted earlier, the 2012 presidential election will almost certainly break all prior records for presidential spending, in large part due to the tremendous influence of Super PACs. The 2010 Congressional races, the first since Citizens United, serve as a useful gauge of where political spending is headed. In that election, candidates and Super PACs cumulatively spent $4 billion, smashing all previous midterm election benchmarks.

These enormous figures result in a highly troubling dynamic, where to win political office, one must either be independently wealthy or capable of raising (and thus having Super PACs procure) a prodigious amount of money. The quality of a candidate’s ideas, and his or her ability to advocate for the implementation of these proposals, grows less and less relevant as a powerful ability to beg for funds becomes the most valuable skill a politician possesses. Ultimately, those who can furnish the most money for a candidate become a vital asset, and their interests are likely to become paramount for any potential governor, representative, senator, or president.

The 2008 global financial meltdown, which consumed several major American investment banks, and cost millions of individuals their jobs, offers important insights into the potentially destructive nature of money in politics. According to a report by the Financial Crisis Inquiry Commission, the avalanche of electoral spending from the financial services industry (more than $1 billion in donations from 1999-2008) helped ensure incomplete oversight over financial markets. Such a lack of supervision helped aggravate the impact of risky and imprudent practices by some Wall Street firms.

Super PACs also disproportionately raise funds from the very wealthy, and thus give moneyed interests, including corporate entities, an even greater voice than they might enjoy from direct donations to a political campaign. While direct donations to political campaigns are restricted by federal law, individuals, and now corporations and unions, can donate unlimited amounts to Super PACs. A close examination of the current presidential contest clearly demonstrates this distressing reality.

Of the nine Super PACs with more than $500,000 raised for participation in the presidential election, nearly half of their funding came from just 22 donors who each gave more than $500,000, and 80% of all funding was due to 90 donors who provided more than $100,000 each. Some donors are large corporations, such as the real estate and outdoor advertising powerhouse Whiteco Industries, or the metals and mining firm Contran Corporation. It is hardly improper to ask whether these firms would seek favorable treatment if or when their desired candidates make it to the White House or Capitol Hill. Citizens United has opened the door to widespread, limitless corporate influence on politics.

In criticizing corporate influence on politics in the wake of Citizens United, it is crucial to take a careful look at precisely why corporations, and financial contributions as a whole, play such a powerful role in politics. After all, donors are not allowed to give money to candidates for the purposes of making their mortgage payment or their children’s private school tuitions. Rather, corporations and wealthy individuals donate primarily to Super PACs that produce advertisements favorable to a candidate, often by portraying competing candidates in an unflattering light.

VII. How This Affects Voters

Money for political advertising might not be so valuable if it did not have an impact on electoral perceptions and preferences, particularly for the large portion of the American voting public that is uninformed about political issues. As Stephen Ansolabhere and Shanto Iyengar of Stanford University demonstrated in their landmark study on the effects of negative campaign advertising (a very common tool of Super PACs), such ads can help depress voter turnout for the candidate who is attacked, and boost rival candidates by facilitating additional negative press coverage of the  opponent who was attacked. Another work by researchers from UCLA and the University of Michigan has demonstrated that political advertising has a stronger impact on voters with lower levels of existing knowledge about a candidate or issue.

Unfortunately, American voters are often woefully ignorant about political events both at home and abroad. This knowledge deficit was driven home by a recent Newsweek study, which found that 29% of Americans could not name the vice president of the United States, while 44% of Americans could not define the Bill of Rights. Abroad, just 58% of Americans could correctly identify the Taliban, despite more than a decade of U.S. military involvement in Afghanistan. In the face of such a lack of knowledge on the part of many voters, reaching low-information voters becomes increasingly important for victory.

Campaign advertising, particularly negative attacks of the sort a Super PAC might finance, are an effective means to accomplish this goal. So while Citizens United should rightly be criticized for furthering the monetization of politics, we must also consider just why our citizenry is so susceptible to slick political advertising funded by deep pockets. A more politically astute populace would probably put reduced stock in such advertising and thus might render it less effective.

VIII. Conclusion

Citizens United seems to have further opened the floodgates of American politics to a torrent of corporate spending. Ultimately, it ensures continued influence for those donors who seek to align politicians’ votes with their interests, through millions of dollars in election contributions, often at the expense of millions of American voters.