To the Biased Bidder: Supreme Court opened a Pandora’s Box of Campaign Spending

By Dean Curran

Today, Americans will vote in what has been the most expensive midterm election in history. Spending by interest groups is up fivefold from the 2006 midterms, and the center for Responsive Politics estimates that when all is said and done spending will amount to some four billion dollars. That is enough money to pay an in-state University of Massachusetts student’s tuition (without financial aid) for 335,655 years, or treat each American to a Big Mac and fries.

There are a variety of factors that account for this dramatic increase in campaign spending. It is true that congressional campaigns have been especially contentious this election season, providing incentive for more advertising. One landmark Supreme Court decision, Citizens United v. the Federal Election Commission held that corporate funding of independent political broadcasts cannot be limited. Decided this past January, this ruling will open up special interest spending in elections the likes of which this nation has never seen. It rolls back on decades of federal law, as well as laws in 20 states. In the past, only individuals could support candidates of their choosing through donations. Corporations and unions were forbidden to do so except through political action committees (PACs), which in turn only raise money from individuals. This is no longer. The Court’s ruling has dramatically enhanced the role of corporate interests in Washington. Furthermore, it threatens to undermine the influence of the ordinary voter and the integrity of our electoral process.

The Court’s decisions have generated fierce criticism from both parties. President Obama said in his weekly radio address that, “this ruling strikes at our democracy itself,” and “I can’t think of anything more devastating to the public interest.” Senator John McCain said that, “there’s going to be, over time, a backlash… when you see the amounts of union and corporate money that’s going to go into political campaigns.”

The ruling was a 5-4 majority in favor of Citizens United, a non-profit political action group. In 2008, they sought to air commercials promoting its ‘DirecTV’ film Hillary: The Movie, a documentary critical of then senator and democratic primary candidate, Hillary Clinton, just before the primary. The U.S. District Court in Washington D.C. held that this was in violation of provisions of the Bipartisan Campaign Reform Act of 2002 that restricted “electioneering communications” defined as a “broadcast, cable or satellite communication that mentions a candidate within 60 days of a general election or thirty days before a primary.” The Supreme Court overruled the lower court’s decision, and also saw it necessary to overturn Austin v. Michigan Chamber of Commerce and McConnell v. FEC, which placed limits on corporate donations in elections.

In the majority opinion, Justice Kennedy articulated that limits on campaign contributions and broadcasts violate free expression as guaranteed in the First Amendment. However, campaign finance laws do not imply in any way that corporations may be silenced. They merely limit a specific class of communication that is especially likely to corrupt the political process. In the years since these laws have been enacted, special interests have continued to play a major role in the national dialogue. These laws in no way restrict conventional television advertising, telephone, internet, or print advocacy, individual donations, or any other avenues of expression.

The Court also reasoned that speech cannot be regulated differently based on the identity of the speaker. In this case the speaker’s identity is a corporation. However, the Supreme Court has on many occasions upheld restrictions on expression based upon who is expressing. For example, the Constitutional rights of students in public schools are not “automatically coextensive with the rights of adults in other settings,” according to Bethel School Dist 403 v. Fraser (1986). In Civil Service Comm’n v. Letter Carriers (1973) Executive branch employees are banned from taking “any active part in political management or political campaigns.” Prisoners are not entitled to full First Amendment rights, which the Court found to be “inconsistent with his status as a prisoner” in Jones v. North Carolina Prisoners’ Labor Union Inc. (1977). In each of these instances, the Court has recognized that certain time, place, and manner restrictions are justified when there is a legitimate societal interest at stake.

Undeniably, there is a public interest in placing reasonable limitations on corporate campaign funding and political broadcasts. Endless corporate and union spending in our elections threatens the integrity of our electoral process in two ways. First, companies can spend endless amounts to sway public opinion through possibly deceptive advertising in pursuit of their narrow interests. For example, the same banks whose reckless greed led us into the worst economic collapse since the Great Depression can now spend unlimited sums to sway public opinion against candidates that have refused to bail them out. Second, this system places so much emphasis on fundraising in elections that politicians will have further incentive to decide issues based on the wishes of major campaign donors than the true will of the people.

There is a vicious double standard here. As an individual, it is against the law to hold a campaign sign within 150 feet of the polls, but corporations can run hours of negative advertising on Election Day. In Citizens United v. the Federal Election Commission, the Supreme Court ruled that corporations are entitled to the full speech rights of individuals. But corporations and people are not alike in this instance. Special interests have narrow objectives that are not necessarily in the national interest, and have far greater means to pursue them. Free speech, one of our most sacred national rights, should not be the justification for turning our democracy into what will essentially be an auction – with representation sold to the highest bidder.
Dean Curran is a Collegian columnist. He can be reached at [email protected]