Nexus: Chapman's Journal of Law and Public Policy

Say what you want about the highly controversial, 5-4 Supreme Court decision in Citizens United, it is hard to deny that we are living in some pretty exciting times, wouldn’t you say? Again, Citizens United held that since the First Amendment requires that Congress do not create laws that abridge the freedom of speech, previous legislation prohibiting corporations from funding political advertisement during election campaigns was ruled unconstitutional. It is very easy to get lost in the morass of debate and public clamor surrounding this January decision, but I think we should all try to appreciate the moment for what it is.

Okay, maybe I’m being a bit happy-go-lucky, and maybe right now isn’t the best time to start sentimentalizing the whole thing, but if we just, only for a moment, let go of our contentions and step back for a bit, we would see that we are standing at the forefront of a new political and legal frontier, or, at the very least, teetering on the precipice of political anarchy. (Exciting either way, no?) Campaign financing, as we know it, has been presumably changed forever, and in the advent of this decision, a burgeoning new legal field has also gathered some significant steam—political law. As mentioned by Hugh Hewitt, professor of law at Chapman University, because of Citizens United, laws governing campaign financing, lobbying, and political ethics have, in effect, been issued a blank slate. There isn’t a century of jurisprudence to look back upon regarding these issues because the legal landscape is being shaped as we speak. Admittedly, a legal field not overcrowded by lawyers or bogged down by ancient laws may be more of interest to a budding attorney like myself concerned with an increasingly harrowing job market, but these laws will undoubtedly affect, and be affected, by everyone. The irony of the whole thing is that Citizens United has arguably extended that ability to affect for some more than others. Which brings me to my next point and cause of child-like excitement: How will Citizens United impact this year’s mid-term elections?

Yes, the mid-term elections are just around the corner, and, yes, as we get closer the effects of Citizens United become more and more apparent. Or do they? There has definitely been an increasing amount of public outcry. One, in particular, involves the senior adviser for President Obama, David Axelrod, complaining in September about an “audacious stealth campaign being mounted by powerful corporate special interests” using front groups to fund millions of dollars into misleading, negative campaign ads, “vying to put their Republican allies in control of Congress and turn back common-sense reforms that strengthen America’s middle class.” (David Axelrod, The Election Campaigners We Can’t See, Sept. 23, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/09/22/AR2010092204665.html). The New York Times even went as far as to call this “the most secretive election cycle since the Watergate years.” (New York Times Editorial, The Secret Election, Sept. 18, 2010, available at http://www.nytimes.com/2010/09/19/opinion/19sun1.html). There have also been reports that campaign spending for this mid-term election has, as predicted, drastically increased, with Republican affiliates apparently spending five times more than their Democratic counterparts. (The Center for Public Integrity, Campaign Cash: The independent Fundraising Goldrush Since ‘Citizens United’ Ruling, Oct. 4, 2010, available at http://www.publicintegrity.org/articles/entry/2462/).

But even amidst all this commotion, the actual effects of Citizens United may prove to be not so catastrophic after all. Recent polls have indicated that a number of candidates who are spending more money are actually trailing behind their more thrifty opponents. An article in The Economist sets forth a very interesting theory serving as a possible explanation for this phenomena: “[A]lthough money can sway the odd race here and there, it is generally subject to the law of diminishing returns. Once a candidate has spent enough to become known, the value of each extra dollar falls. A study by Americans for Campaign Reform in 2008 put that minimum at $700,000 for a crack at a seat in the House of Representatives. This leads some to argue that instead of seeking to cap campaign contributions and spending, reformers should aim to help candidates across the magic threshold.” (The Economist, The Best Congress Money Can Buy, Oct. 7, 2010, available at http://www.economist.com/node/17201957). Helping candidates across this “magic threshold” just happens to be exactly what the Fair Elections Now Act, a bill awaiting approval by Congress, proposes to do by offering public matching funds (I mention this in my last blog entry). Yet, as the Economist also suggests, this may not even be necessary because those who contribute to campaign funding are generally pretty good at scoping out the more competitive candidates. So, when in doubt, leave it to the free market, I guess. (However, I do still think that the Fair Elections Now Act could do some real good)

In any case, it seems to me that, at the end of the day, perhaps everything will just turn out okay, and maybe Citizens United will go down in history as being a game-changer in theory, but not in practice; but this could just be me being all starry-eyed again. One thing we know for sure is, at least some of the implications of Citizens United may soon be realized in these upcoming mid-term elections. Do I actually believe this? I don’t know. The results of the mid-term elections will probably, more likely than not, just spark even more confusion and debate over the matter rather than provide us with a clearer path towards a solution. And what about all this talk about a possible constitutional amendment? So much is going on. The only thing I know for sure is that I can’t wait to see what happens, and that the mid-term elections couldn’t come any sooner. We are definitely living in some exciting times.