Nexus: Chapman's Journal of Law and Public Policy

As I sat down to write this blog post, pondering the effect that Citizens United has had – and will continue to have – on the election process, I realized that it is already October, and the consequences of allowing unlimited political spending will soon become very clear. With the midterm elections only a month away, it will soon become impossible to avoid the slew of campaign ads on television, radio, and every other media outlet possible. Already, interest groups have increased the amount of spending by fivefold in the current midterm election campaigns as compared to the 2006 elections, resulting in a grand total of $80 million being spent on campaigning by groups other than the Democratic and Republican parties. (“Interest Group Spending for Midterm Up Fivefold From 2006” at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/03/AR2010100303664.html?hpid=topnews) This article also specifies that the majority of this money is being spent by conservatives, thus out-spending and out-campaigning (if you will) the Democratic Party. As mentioned by my peers and myself throughout these blogs, it is starting to become more apparent that the unlimited ability of corporations, unions, and other interest groups to donate funds to political campaigns is most definitely going to have a great effect on political elections.

However, there are other issues that should be considered other than the self-promotion, opposing attacks and out-of-party donations currently taking place in campaigning. The two additional concerns that occurred to me are the problems with disclosure, and the flooding of dockets due to redefining corporations and their rights and privileges.

Transparency is key in any governmental process, and I would argue especially in the election process – whether it be congressional, presidential or local. Transparency not only allows those monitoring and regulating the election process to carry out their jobs effectively, but also instills a certain amount of confidence in the average voter. Without disclosure of certain facts, especially those relating to funding, campaigning appears even more suspicious and questionable to voters than ever before. While the message promoted in a candidate’s campaign advertisement is meant to provide voters with presumably ‘all the information they need’ by their stance on topics of major public concern, reading the small print at the end of the advertisement provides even more information regarding their campaign, their supporters, and essentially, the goals they’re trying to achieve and the organizations that they will have to appease once in office.

Clearly, the issues of disclosure and maintaining a fair, even-fielded election and campaigning process has grown after the decision in Citizens United v. Federal Election Commission. President Obama himself has criticized the Supreme Court decision on corporate spending, and has the support of many governors – mostly on the Democratic side. The Washington Post reports that several Democratic politicians are forming and plan to announce a coalition today entitled the Coalition for Accountability in Political Spending, geared towards convincing major companies and corporations to curtail their use of corporate funds on political campaigns. The Coalition “aims to secure promises from major corporations to fully disclose any political spending and, ideally, to avoid spending corporate money directly on elections.” (“New coalition wants companies to pledge not to use corporate dollars on political campaigns” at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/04/AR2010100400238.html?hpid=topnews) Bill de Blasio, the leader of the coalition and the focus of this article, has already successfully convinced major companies such as Goldman Sachs, J.P. Morgan Chase, and Morgan Stanley to adopt policies that restrict the spending of money from their general treasuries in elections, and has directly identified the failure of Congress to impose disclosure requirements on corporations as the reason for forming the coalition.

Furthermore, a perhaps broader issue is the expansion of our knowledge of corporations and the rights and freedoms that they are afforded. By ruling that regulating corporations’ spending and restricting their ability to produce electioneering communications is unconstitutional, the Citizen’s United decision essentially ruled that corporations are the same as people in regards to First Amendment rights. Not only does this have a direct effect on campaigning and the election process, but it also opens the doors to a floodgate of cases whereby corporations want to redefine themselves and their inherent rights. Corporations will now strive to broaden the rights that they now feel entitled to, based on their newly-gained status as ‘individuals’ or ‘people.’ This concern was addressed by Justice John Stevens in his dissent in Citizens United, stating that corporations “are not members of our society. They cannot vote or run for office.” With the Supreme Court reconvening today, we can be assured that it will be flooded with cases of this nature; already the Court has added to its docket cases relating to companies’ rights to privacy and due process. (“Supreme Court Takes Cases on Corporate Rights” at http://www.nytimes.com/2010/09/29/us/29scotus.html)

Most noticeable is the case Federal Communications Commission v. AT&T Inc., where the Court must decide whether corporations have privacy rights for the purposes of the Freedom of Information Act. The issue presented in this case brings us full-circle: starting with the question of what inherent rights do corporations have as conferred upon them by the U.S. Constitution, which then brings us back to the question of whether we want or need corporations to be afforded privacy rights to begin with, and how should this right to privacy be limited. Obviously, I understand that corporations do require the ability to keep some information private in order to maintain their business as well as to promote a competitive market – I don’t expect that legislation or case law will require companies to make all information public for scrutiny. However, I find it interesting that corporations are fighting for privacy through this case, which is basically a right that they’ve achieved through the Citizens United ruling whereby they do not need to disclose their spending on political campaigns.

Analyzing the Citizens United decision and the effect it has on corporate spending during election campaigns is therefore merely a gateway to broader and more analytical concepts - corporate disclosure and other rights that corporations are 'entitled' to under the Constitution of the United States of America. However, I do suspect that this is only the beginning of what will be a long-standing and confusing debate, especially for the Courts, who will now have to decide where to draw the line.