Nexus: Chapman's Journal of Law and Public Policy

Our journal, the Nexus Journal of Law and Policy, held its annual Symposium entitled “Citizens Divided on Citizens United: Campaign Finance Reform and the 1st Amendment” last Friday, October 22, 2010. The Symposium began with an interesting panel of speakers- including a Constitutional law professor, a journalism scholar, and an election law researcher. Each of them expressed concern over the recent Supreme Court decision in Citizens United in which the Supreme Court struck down parts of the McCain-Fiengold Act that prohibited corporations from spending money on express advocacy for a political candidate within a specific time frame before an upcoming election. Several panelists argued that in effect that the Supreme Court gave corporations the green light to participate in elections by eliminating distinctions between individuals and corporations. Skeptical of a corporation’s right to spend money on politics to facilitate a marketplace of ideas, the panelists expressed concern that corporations will use this case to opportunistically advance corporate viewpoints.

Arguments presented in favor of restrictions on corporate spending in political campaigns-

One panelist was disturbed that Citizens United wrongly determined that corporations have Constitutional rights. In his view, corporations are artificial entities that are not entitled to the same rights as individual citizens. This panelist also argued that campaign finance limitations are necessary because public listeners are not able to objectively filter falsehoods and find the truth that lies beneath bombardments of political advertisements before elections. On the other hand, corporations are associations of citizens and should be afforded rights on behalf of the citizens they represent.

Arguments presented in opposition to restrictions on corporate spending in political campaigns-

Restrictions on corporate spending on political campaigns are regulation of speech that can amount to censorship. Moreover, it discourages rational voters. Voters should be exposed to different viewpoints about candidates to make them become more informed before voting. One panelist explained how some corporations that qualify as “press” or “media” should be exempt from campaign finance restrictions so long as they have a legitimate press function (to distribute news/editorial) and spend money to disseminate such information. This exemption would enable the press to maintain its freedom of speech while protecting

What’s after Citizens United?

One panelist argued that Citizens United didn’t change the election system because the loudest voice remains the candidates themselves. Moreover, corporations might not take advantage of the Citizens United ruling because political speech is bad for business. Alternatively, corporations will likely only take advantage of Citizens United by establishing “Get Out & Vote” programs that only target corporate employees.

On the other hand, some argue that further reform is important so people have faith in our functioning democracy. Reform options include a state or federal Constitutional amendment providing that corporations are not individuals. A second option would be requiring public financing of all campaigns. Public funding can be structured several ways. One possible way to structure public funding of political campaigns is to give an up-front specific amount and match funds if one is opposed by a candidate with private funds up to a certain percentage of the original amount. A third option is requiring full disclosure of corporate expenditures that interfere with elections. Advocates of this option urge a uniform set of rules- from the federal level. Either way the next step arguably is the enactment of new legislation.

Comparison to British Election Law

Parliament in the United Kingdom enacted a bill in 2003 that banned political advertising on TV and radio. After a challenge was brought that it violated the European Convention of Human Rights, the Law Lords upheld the law in 2008. I doubt that such legislation could ever successfully be enacted in the US because it would violate 1st Amendment freedom of speech. But I am intrigued that other countries take it to the extreme to protect the independence and impartiality of voters.

The Symposium was a successful event!

The Symposium drew crowds of people interested in this topic which contributed to lively question and answer sessions after panelists concluded their presentations. A question raised was whether there was any empirical evidence that allowing corporations to spend money on political campaigns had any effect on voters. The panelist could not point to any such study. I think it will be interesting to see if any of our authors will follow up on this suggestion.