Nexus: Chapman's Journal of Law and Public Policy

The dust has finally settled on what was a competitive, fierce, and damaging (for Democrats) election. Defeated politicians are reveling in defeat, and President Obama has recognized that the American people want and demand change. All over the country, the Republican Party picked up seats in state legislatures, governorships, and in congress. In the House of Representatives, Republicans now control 239 seats while the Democrats are left with 187. In the Senate, the GOP was unable to size control, but they were successful in reducing the Democrats majority control. The Senate now stands at 46 Republican held seats, 51 Democrat held seats, and 2 Independent seats. Media reporters and anchors are calling this historic change in party power in the House of Representatives a “shellacking.” I was somewhat surprised with the media’s choice of words. Out of curiosity, I decided to look up the definition of shellacking because I have a general idea of what the word means, but I wanted to know the exact definition; as I’m sure most people are in the same boat as I, and do not know the exact definition, but have a general idea of what it means. Dictionary.com defines shellacking as: “(1) an utter defeat: a shellacking their team will remember. (2) a sound thrashing: His father gave him a shellacking for stealing the book.” After reading the definition I am no longer surprised with the media’s choice of words (I also hope, you’re also not surprised with the word being used in this context). The word shellacking properly defines what happened to the Democratic Party: The American voters wanted to send a message to the President and Congress that they would not forget. Simply, “utter defeat” does not portray the message behind the election in the same sense as the second definition “a sound thrashing” does. Anyway, going back on topic, in state governor races, the Democrats lost control of 9 seats. However, the GOP did not succeed in maintaining the governorship of California. That went to Democratic Party candidate Jerry Brown.

In what was the highest self-financed election campaign in history, Meg Whitman was defeated by Jerry Brown as the next governor California. Billionaire Meg Whitman shattered the previous record for a self-funded campaign set by New York Mayor Michael Bloomberg. He donated 109 million dollars to his own campaign. Whitman’s election campaign spent over 161 million dollars of which approximately 140 million dollars was contributed by herself. Jerry Brown, in contrast, spent approximately 25 million dollars from independent third party contributors such as unions who campaigned on his behalf. In all, the independent third parties spent over 31.7 million dollars and a considerable amount of the money raised went towards the Brown campaign in order to keep up with the massive monetary advantage Whitman held. In the previous 2008 election, independent third party spending TOTALD approximately 19 million dollars. This extreme upsurge of money is directly related to the Citizens United decision.

The Citizens United decision in January 2010 held that spending limits on independent third party breached the first amendment rights of the media and independent third parties. As a result, portions of the McCain-Feingold Act also known as the 2002 Bipartisan Campaign Reform Act were held unconstitutional. Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010). The portions that restricted “electioneering communications” from independent third party organizations were struck down while the requirements for disclosure and who supports the advertisements were upheld. Political analysts were left wondering what effect would this have on the upcoming election.

Some people may argue that Citizens United did not have a significant effect on the gubernatorial race of California because Meg Whitman spent so much of her own fortune to finance her campaign. The record amount of independent spending going to Jerry Brown only countered the massive private contributions from Meg Whitman to herself. However, these people are forgetting that without the independent spending by third parties Brown would have been unable to keep up with the media advertisements Whitman was able to maintain. In fact, thanks to these independent third parties, primarily unions, Brown was able to place advertisements and reduce the advantage Whitman had. Although 25 million dollars may seem like a small amount compared to the massive 140 million dollars spent by Whitman, 25 million dollars can go a long way in terms of buying media advertisements. Regardless of what you may believe, the Citizens United decision had a direct effect on the California Governor election.

There are people who argue that politicians are able to “buy” elections. Meg Whitman’s defeat at the hands of Jerry Brown is a remarkable example of that simply being not true, and proves elections go beyond simply spending. The general consensus of voters who supported Brown concluded that Brown had more experience and understood the thoughts, ideas, and demands of the California public. That is primarily why Meg Whitman lost despite spending record amounts of money on her campaign. Another significant reason why Meg Whitman was defeated by Jerry Brown was negative advertisements. Meg Whitman contributed large amounts of money directly to political ads that attacked Brown political record. Jerry Brown, himself, did not spend as much money attacking Meg Whitman with attack ads, but instead, independent third parties did the majority attacking for him. Meg Whitman was openly criticized by the public, the media, and her opponent for delegating so much of her campaign finances to attack ads on Jerry Brown. The result is as you see it today: Jerry Brown is walking away as the governor-elect and the candidate who did not depend on negative attack ads. However, only thanks to Citizens United, was this result was achieved. If independent third parties could not contribute to electioneering communications as it was before the landmark January 2010 decision, it is entirely possible that the election would have turned out in favor of Meg Whitman. Jerry Brown would have had to contribute his own campaign finances to attack ads instead of depending on third parties and would not seem so innocent to the California voters. Additionally, the massive spending advantage Meg Whitman held would be much larger. As the famous “tootsie roll pop” commercial goes: “the world may never know.”

Sources:

http://www.usatoday.com/news/politics/default.htm; http://www.cnn.com/ELECTION/2010/results/main.results/#val=S; http://californiawatch.org/election-2010; http://www.mercurynews.com/elections/ci_16439576; http://latimesblogs.latimes.com/california-politics/2010/11/independent-spending-for-2010-campaign-sets-record-.html; http://dictionary.reference.com/browse/shellacking