Nexus: Chapman's Journal of Law and Public Policy

With the conclusion of the 2010 midterm elections, it would seem as if breath of fresh air has infiltrated our public airways. No more ominous commercials citing the demise of democracy lest the opposing party’s candidate gets elected, no more ads trying to paint the “issues” in the worst colors possible, and no more out-of-context jabs at the opponent we’ve all seen flashing across our television screens.

Not so fast.

2012 elections are a hop, skip, and a corporate-funded political ad away.

For Democrats who are still mourning the loss of control of the House, the 2012 elections are crucial. Especially for the incumbent officer most eager to keep control of his job: President Barak Obama. With analysts still trying to sort out the true impact of Citizens United on the 2010 Midterm elections, 2012 promises to provide even more fodder to the fire. In the wake of the abolition of decades of campaign finance restrictions (a courtesy of Citizens United), groups outside the political parties spent an estimated $500 million, which mostly benefitted the Republicans, on attack ads and other election activities. Although both democrats and republicans raised less in 2010 for congressional races than in previous cycles, outside interests groups reported through October spending of $270 million for congressional candidates—double the amount spent in 2008 and five times the amount spent in 2006, according to the FEC.

To have any fighting chance winning the election in 2010, the democrats need a game changer. If the 2010 midterms will teach them anything, its that an onslaught of GOP spending vis-à-vis a nation frustrated with current democratic policies results in the loss of sixty-plus seats in the House. Not an easy blow to a President looking to secure a second term. Eager to buoy this momentum into the presidential election, Republicans are taking notes on how to continue successfully outspending Democrats in a post-Citizens United arena where corporate dollars flow plentiful and free. As Dan Eggen of the Washington Post characterized it, the “Democrats now say they must fight fire with fire by encouraging the formation of counterweights to the GOP-leaning independent groups that dominated the airwaves this fall.”

Will the corporate restraints lifted by Citizens United be President Obama’s golden ticket to more effective political spending in 2010? And if so, will this sudden change of heart tarnish his folksy image adamantly opposed to corporate contributions that won America’s hearts and dollars two short years ago?

When the Supreme Court released the Citizens United opinion in January 2010— which was ninth on the list of longest majority opinions issued from the Court –President Obama had two opportunities to express his true feelings about the impact this decision was bound to have. First, the President used his weekly Saturday evening address aired on the week of January 23, 2010, to articulate just how detrimental he thought the opinion was:

“One of the reasons I ran for President was because I believed so strongly that the voices of everyday Americans, hardworking folks doing everything they can to stay afloat, just weren’t being heard over the powerful voices of the special interests in Washington. […] We’ve been making steady progress. But this week, the United States Supreme Court handed a huge victory to the special interests and their lobbyists – and a powerful blow to our efforts to rein in corporate influence. This ruling strikes at our democracy itself. By a 5-4 vote, the Court overturned more than a century of law – including a bipartisan campaign finance law written by Senators John McCain and Russ Feingold that had barred corporations from using their financial clout to directly interfere with elections by running advertisements for or against candidates in the crucial closing weeks.

This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don’t. That means that any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time. Even foreign corporations may now get into the act.

I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.”

Second, the President used perhaps his largest national stage—the State of the Union Address— to confront head-on the decision of this nation’s highest court. In words that can be characterized as critical at best, the President said the following:

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

The President’s words, with eleven months and a telling midterm elections now having passed, bring to the forefront a legitimate concern. Obama’s fear about bankrolling elections by America’s special interest groups becomes particularly troubling to the Democrats as they look forward to strategize about fundraising. With David Axelrod about to step out of the White House and into his full time shoes of overseeing the President’s reelection bid, the democrat’s game plan will likely change, making the President’s attack on the Court and accusation of Citizens United becoming an affront to the democratic process seem foolish. In the 2008 elections, Obama’s campaign declined contributions from political action campaigns and instead turned to a grass-roots movement to mobilize small donors and the everyday man and woman to give a dollar here and there to the tune of amassing $750 million. An impressive feat by anyone’s standards. But, in 2012, with the GOP already showing impressive fundraising in the wake of decreased regulations with regard to corporate contributions, will the democrats be forced to join the masses and accept corporate donations?

My cynical and practical side believes Obama has no choice. It would be interesting, however, to ask him now which he thinks would me more devastating to the American people: a campaign funded by special interests in which he won, or a campaign steamrolled by republicans who used corporate dollars to take the job.

My guess would be he’d side with the latter.

Sources cited:

See Eggen, Dan, et al, “In 2012, Democrats plan to fight cash with cash,” The Washington Post, 20 November 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/11/19/AR2010111906954.html.

See Eggen, Dan, et al, “In 2012, Democrats plan to fight cash with cash,” The Washington Post, 20 November 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/11/19/AR2010111906954.html.

See Eggen, Dan, et al, “In 2012, Democrats plan to fight cash with cash,” The Washington Post, 20 November 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/11/19/AR2010111906954.html.

Adam Liptak, The Roberts Court; Justices Long on Words but Short on Guidance, New York Times.

State of the Union Address, January 27, 2010, http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address