Nexus: Chapman's Journal of Law and Public Policy

In honor of our symposium, the journal members decided to write blogs relating to Citizens United. For better or for worse, I consider myself a political junkie. I’m one of those people who yell at the TV when someone says something I disagree with. However, I decided to temper what I would normally say because I realize that words have consequences, and I certainly don’t want to jeopardize any future employment opportunities. For instance, the other day I heard that certain divisions within the EPA don’t hire attorneys that were members of the Federalist Society. Rumor? I don’t know, but I’m not a member of the Federalist Society in case anyone from the EPA is reading this.

So why do words have consequences and what does that have to do with Citizens United? Disclosure laws. In 1976, the Supreme Court in Buckley v. Valeo authorized the disclosure of political contributions. But before, I talk about disclosure, I want to say that I believe campaign finance reform is an affront to the Constitution.

As children, everyone learns the meaning of no. However, it would appear that certain branches of our federal government aren’t like the rest of mankind. The First Amendment to the Constitution reads, “Congress shall make NO law…abridging the freedom of speech.” Not much wiggle room, right? However, the Supreme Court was somehow persuaded that there was a compelling government interest in preventing the appearance of impropriety. And the best way to combat this problem was to limit how much money citizens could contribute directly to campaigns. My problem with campaign finance reform is that it serves a devious purpose. Congress was not blind to the fact that money is the life blood of politics. If that’s not the case, can anyone explain to me why the Millionaire’s Amendment came into existence, which thankfully has been struck down by the Supreme Court?

Campaign finance reform should be renamed the incumbent protection act. It’s a statistical fact that a substantial majority of incumbents are re-elected in each cycle. Every time campaign finance reform is amended to close the LOOPHOLES, it is a self interested act of protectionism. I have always found it ironic that politicians justify campaign finance reform by claiming to be protecting the voice of the little guy by placing limits on how much he can spend. Yet it is the rich and powerful who can hire ingenious attorneys to come up with new and creative ways to funnel ungodly amounts of money wherever they want. The bottom line is that limiting what someone can say should not be tolerated in a free society. If Warren Buffet wanted to donate every single penny of his $45 billion dollars to electing someone, regardless if I agree with him or not, he should be free to do so.

Now you’re probably thinking that I must be just as adamant in my opposition to disclosure, but I’m not. Some argue that disclosure laws abridge speech because it deters people from speaking in fear of retribution. I don’t have a problem with that. I fervently believe in free speech, but you shouldn’t be able to hide after saying it. A free society must also be a responsible society. Ask yourself, could you imagine what it would be like if one could say whatever they wanted anonymously? Politics are ugly enough even with disclosure laws.

Some of you may vaguely recall the 2000 election and the hubbub surrounding the NAACP’s political ad tying George W. Bush to the dragging death of James Byrd. For those of you who don’t remember, James Byrd was an African American who was dragged to death behind a pickup truck by a couple of white supremacists. In the NAACP advertisement, the daughter of the victim said that “[W]hen Gov. George W. Bush refused to sign hate crimes legislation, it was like my father was killed all over again.” While the killing was truly a depraved act, and I would never make light of such an act, can you imagine if no disclosure law existed? If the NAACP was willing to put its name on a political ad that insinuated that then-Gov. Bush was responsible for future acts of racial violence because he refused to sign a bill, can you imagine what might have been said if there were no disclosure laws?

Disclosure also functions to give the public more information about politicians or issues by knowing their supporters. Take for instance California’s upcoming Prop 25. I recently heard an advertisement that stated “Prop. 25 reforms California’s broken state budget process. Holds legislators accountable for late budgets by stopping their pay and benefits every day the budget is late.” (California Voter’s Guide). Who couldn’t agree with that? But then I heard who was supporting the bill. I can guarantee that Prop 25 will have at least 1 no vote. In fact, I didn’t even bother to read the rest of the California Voter’s Guide on Prop 25. The knowledge of who was supporting Prop 25 was enough to know there is more than meets the eye with the proposition.

So what affect will disclosure have in light of Citizens United? If you listen to some commentators and a certain high ranking elected government official, you may think your voice is about as worthless as the German Reichsmark at the end of WWII. However, I believe disclosure will be the mechanism by which our seemingly doom democracy will be saved from the evil corporate special interest groups. Let us not forget that corporations are owned by shareholders and rely on the general public to purchase their products. When corporations begin to alienate shareholders and the public by supporting candidates or issues the shareholders and public disagree with, market forces will kick in. While no boycott will ever be as iconic as the Montgomery bus boycott led by Dr. Martin Luther King, there will be consequences for corporate actions that the public disagrees with (recall the boycotts of businesses that supported Prop 8?). I suspect that our capitalist/market economy will keep ideologues in corporations from going off the deep end, because words have consequences.