Nexus: Chapman's Journal of Law and Public Policy

Now that the election season is finally over it is a good time to take a look at the first election Post-Citizens United.

I must preface this discussion with the realization that the impact of the Supreme Court’s Citizens United campaign finance decision is hugely controversial. Not only did a divided court rule on Citizens United, but a divided country can’t decide to what degree the Citizens United decision affected the election landscape.

However, certain facts are undisputed. In the first midterm election that followed the Citizens United decision more money was spent than ever before. What is disputed is whether the Citizens United decision was a huge factor in the decision. The Center for Responsive Politics reports that nearly $300 million dollars was spent by corporate trade associations, unions, and other outside groups. It also reports that this figure is almost quadruple the amount spent in the 2006 midterms. (For an interesting chart on how much was spent, along with the different amount spent by the Democrats vs. the Republicans go to: http://www.opensecrets.org/outsidespending/index.php).

One question that has been raised by this rash spending is whether or not this money was in fact spent wisely. Were the corporations, trade unions, and others actually receiving value for the large amount of money spent on different political candidates? One thing is certain. The amount of money spent by conservatives dwarfed the amount spent by the liberals. The return on that investment: John Boehner. The republicans took the house and at least some of that can be tied back to how much money was spent during the campaign.

I am not trying to say that the Republicans took control of the House of Representatives because of Citizens United. Heck, I am not even trying to say that the Republicans took the house because they spent more money. In fact, they probably spent more money because so many people ended up being unhappy about the current direction of the government. All I am pointing out is that on some level this influx of money did in fact produce some tangible gain.

However, the real question as it relates to Citizens United, campaign finance reform, and the Supreme Court is whether Citizens United did much to change the status quo. Although Citizens United was rather far-reaching, corporations had a large amount of power to spend prior to the decision. The Supreme Court had already sanctioned issue-based advertising but simply stopped one step short of sanctioning advocating for or against a particular candidate. Citizens United simply opened the floodgates in that regard. Therefore, the impact seems to be largely psychological as previously a corporation could support an issue that it new was supported by a specific candidate.

But, this psychological difference is what I believe most people are truly upset about. In a time of recession the Supreme Court gave Corporations more power to try and control the government. Corporations already have enormous power through lobbyists and the like. Do we really need to afford them huge power to spend their money to back certain candidates? Another question to ask yourself is should we be giving them this power when they are making record profits this year while everyone else is simply trying to stay afloat?

I think a large group of people answered this question recently in Minnesota. In Minnesota Target donated $150,000 to MN Forward, a pro-business group in Minnesota. That group spent money on behalf of Republican candidate Tom Emmer in the still-undecided Minnesota governor’s race. Emmer’ opposed gay marriage which upset a large contingency of people. MoveOn.org, the Democratic political advocacy group, widened a petition drive to its five million members to drum up opposition to the Target donation. Although the boycott may not have been widely effective it did prompt Target Chief Executive Gregg Steinhafel to write a letter to his employees. The letter stated that Target did not support all the positions of candidates it backs, and had an “unwavering” commitment to gay employees.

This example shows that although corporations essentially have an unfettered capability to donate to whomever they wish without getting the approval of shareholders or customers they are going to be subject to some public backlash.

However, this could change depending on what form of Disclosure is required by political contributions in the aftermath of Citizens United. At the moment The Disclose Act, which would require corporations to report more of their campaign spending is stalled in the Senate. The House has already passed the bill, but only two Republicans supported the bill in the house and therefore this bill seems doomed as the GOP has retaken the house.

I believe that disclosure is the real crucial element left in Campaign Finance post-Citizens United. Disclosure is the way for the people to hold corporations accountable for the spending of what is essentially the people’s money. Corporations were set up in the Constitution as entities which would promote the public good. It is this same Constitution that the Supreme Court used to give corporations unlimited spending power in the political arena. These same Corporations already control our economy, is it really ok to give them more power in our election process?

This is the problem I have with the Supreme Court’s decision in Citizens United. We are allowing the rich unfettered power in democracy. No longer is each person’s voice the same. Let me explain my dilemma with an example.

Right now there is a huge debate about tax breaks for the rich. It would seem under the definition of democracy, if the majority of the people believe that the rich should pay higher taxed, than the rich should be subject to more taxes. However, if the rich are donating all the money through corporations and those same people who run the corporation are going to benefit from lower taxes, doesn’t that create some sort of dilemma in the election process? Aren’t we simply empowering the rich? It just doesn’t make sense to me to allow Corporations, who already have all the money, so much power in the election process.