Nexus: Chapman's Journal of Law and Public Policy

First, a few comments on Chapman’s recent Symposium which turned out to be an enormous success. All of the panelists brought fresh and exciting points of view to the table and I found all of the speakers to have interesting and unique perspectives on the many impacts of the Citizens United decision. All of the speakers spoke in a clear and convincing manner and highlighted aspects of the decision and their impact on the nation, in ways most never would think of. I would like to thank the Nexus Journal for bringing all of these collective works together and presenting them in a collegial and necessary forum.

With that being said, I would like to comment on some of the more intriguing aspects of the decision which were analyzed by the panelists. The keynote lunch was one of, if not the highlight of the afternoon. Both Mr. Davis Denny and Mr. Ginsberg had interesting and divergent ideas about the implications of the Citizens United. Mr. Davis Denny tried to analyzed the actual impact on corporate spending, acknowledging that there is no perfect tool available to do so, he spoke confidently and assured the group that although there was an impact on spending, it is unclear of just how much. He pointed out that “Issue Campaigning” might actually present more of a problem, as the law already allows these types of advertisements to be sponsored by corporations. Even still, Mr. Davis Denny explained that Citizens United was just another unfettered outlet for corporations and that instead a turning the law in the direction it should have gone, the Court instead chose to open the flood gates a little more.

Mr. Ginsberg spoke from his many years of experience and real world application of these issues. His basic proposition was not that candidates will be bought and paid for, but rather he introduced the idea in a more subtle and impactful way. His premise was that by allowing such contributions from different special interest groups, that you no longer allow the candidate to speak on their own platform. In order to obtain the money from these groups, candidates will feel pressure to platform on those issues. Mr. Ginsberg does not suggest the corruption one might infer from this line of speaking, he simply points of the inherently, candidates and possibly the groups will just naturally expect this type of platforming to occur. This is a serious issue, he points out, because the life of a democracy depends on the voice of the people, not the corporations. It is also important to point out that the public will be voting on how to run politics of corporations and interest groups rather than on issues that are at the heart of this country, the individual and their rights. Both speakers were brilliantly offset by each other and the issues, unparalleled.

Briefly, I would like to comment on Mr. Canova’s speech. Mr. Canova pointed out that corporations are not people and should not be extended the same constitutional rights as individuals. They are a “person” in the legal fiction sense but are not an individual with individual liberties. His proposition was to amend the constitution to state that corporations are not people. He also spoke passionately about the role of free air time in America. He surprised many people when he disclosed that we are among on seven other nations that do not allow political candidates free air time to campaign. No wonder everyone is excited over how they are able to buy some. His propositions were cutting edge and extremely insightful. Oh and a majority of those seven countries we keep company with, they are developing and undeveloped countries.

Finally, Ms. Torres-Spelliscy spoke about the disclosure factor presented in the Court’s opinion. Recently, I found an interesting article related to this subject. We are aware that the decision allows corporations to have unlimited access to promoting political candidates. “The Court also decided 8 to 1 that the government is well within its rights to require corporations and other entities to report their donors, expenditures and other campaign-related financial information. The ruling means that although Citizens United is now able to spend freely on elections, the group might be required to report more information about where it got its money and how it was spent.” Citizens United earlier this year sent a letter to the Federal Elections Commission asking to be exempt from this disclosure because the FEC exempts “media organizations from campaign finance laws.” However, Citizens United had tried this a few years earlier but was rejected by the FEC because it had not made enough documentaries since its formation and furthermore, was not being paid to have them aired, but rather was paying to have them played. Bottom line is that even though they won in the majority of the case, they still would like to circumvent the disclosure portion the Supreme Court put in place to try and counterbalance their sweeping decision.

In its official advisory opinion, the FEC wrote “Since Citizens United, the consequence of not being eligible for the press exemption is that the speaker must disclose information related to the communication and must report that information to the Commission.” Does the press exemption extend to Citizens United? The FEC states, “Because the consequence of not extending the press exemption is no longer a complete silencing of the speaker, but rather the consequence is disclosure of information about the flow of funds that are being spent for the purpose of influencing an election, I believe that it is no longer appropriate to apply the press exemption as broadly as before.” They continue, “In light of the Citizen United decision, it would be my hope that the Commission will revisit the breadth of the Act's press exemption, and its policy underpinnings, as part of our rulemaking proceeding -a proceeding that will be open to public comment -to promulgate the many regulatory changes necessitated as a result of the Citizen United decision. Until then, I do not think it would be appropriate, in an advisory opinion, to extend the scope of the press exemption any further than we have already.” Not today Citizens United, but maybe tomorrow.

Works Cited: Citizens United vs. Federal Election Commission Dan Eggen - Citizens United Challenges the Strident Side of Supreme Court Ruling, Washington Post, Apr. 1 2010