“The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”1
--Buckley v. Valeo, (1976).
There have been countless debates about the Supreme Court case Citizens United v. Federal Election Commission, most commonly referred to simply as Citizens United. Many are saying that Citizens United spells out the end of democracy as we know it, but I'm here to debunk 13 of the most commonly made, and most wrong, claims.
1. Claim: Corporations reflect an influential minority of America and should not be allowed to speak collectively because the aggregation of their wealth drowns out other stakeholders.
Voters consistently list job creation as their number one priority for the next president. They should want a president who will take seriously the advice of the companies that actually hire workers. Workers see the economy differently than business owners. This is not an admission of superiority for either view, but simply recognition of that variance.
For instance, the Advanced Medical Technology Association estimated that Minnesota could lose 2,700 medical technology jobs because of the 2.3% medical device tax contained in the Affordable Care Act. Politicians from both parties in Minnesota are concerned that the tax could have a detrimental impact on the Minnesota economy.
Medtronic, a large medical device corporation based in Minnesota, undoubtedly has more money to spend than a private citizen on independent expenditures. Is that such a bad thing? The medical device tax that may be absolutely necessary to save lives through expanded medical insurance might also put people out of work and prevent the unemployed manufacturing workers from getting back in the economy. Workers who could have been hired but weren’t highly unlikely to organize and to make independent expenditures. If the public is going to decide important and meaningful issues, like the medical device tax, it deserves to hear fully from both sides of the issue.
2. Claim: Large concentrations of wealth will be used to advance issues that benefit the bottom line of corporations, because all corporations care about are regulations and taxes.
Corporations are often used interchangeably with special interests groups to paint a picture of insidious perversion of democracy, a picture that treats the Super-PAC as the manifestation of that perversion. However, the independent expenditures made by a Super PAC are not inherently wrong.
Amazon founder Jeff Bezos donated $2.5 million to a PAC advocating in favor of gay marriage in Washington State. This PAC has accepted support from unions, associations, and concerned citizens like Bezos. This entire enterprise of promoting gay marriage is predicated on the freedoms offered by Citizens United to engage in independent expenditures.
The First Amendment, at its core, is a protection for minority viewpoints against the power of the majority. Sometimes the viewpoint espoused is in the minority because the speaker possesses an “immense aggregations of wealth”2 but the viewpoint of the speaker could be discriminated against because of sexual orientation, religious beliefs, or any other status that engenders dislike from opponents, and we would defend the right of that speaker.
3. Claim: Citizens United will unleash a tidal wave of money on candidates for federal political office, and ExxonMobil will be cutting checks to Sen. Doe (R-Oil).
Citizens United only applies to independent expenditures by corporations and labor unions and does not allow contributions by for-profit or nonprofit advocacy corporations directly to candidates for federal office. Supreme Court precedent establishes a clear line of segregation between expenditures for a campaign and independent expenditures.3
4. Claim: Corporations with millions of dollars in profits will heavily skew public debate away from average citizens.
When he was asked to endorse a Democratic candidate for U.S. Senate in North Carolinian 1990, basketball legend Michael Jordan insightfully noted that “Republicans Wear Sneakers Too.” Today for-profit corporations are likewise concerned about offending either side of the political debate. For-profit corporations like to sell goods and services, not ideologies, and a Chevy minivan can just as easily transport six people to a Tea Party rally as it can transport six union workers to a picket line.
After Citizens United, Minneapolis based retailer Target Corporation decided to support a Minnesota independent expenditure campaign that aired ads in favor of candidates who held pro-business polices. Some of those same candidates also opposed gay marriage, so gay rights activists did not appreciate Target’s spending. In response, gay rights activists organized a boycott of Target that resulted in an apology by Target. Even in a post-Citizens United political landscape, average citizens can organize and counter corporate independent expenditures.
5. Claim: After Citizens United, corporations now have the same rights as natural persons and that is perverted.
Protesters, including the Occupy Wall Street movement, ridiculed the notion that corporations are people. They were right, but probably not for the reasons that they thought. Corporations are simply a collection of individuals who come together and through their chosen structure enjoy certain benefits like limited liability while also incurring costs like extra taxation. When AT&T tried to test the limit of corporate person-hood following Citizens United, the Supreme Court unanimously rejected the argument that “because “person” is defined…to include a corporation, the phrase “personal privacy”…reaches corporations as well.”4 An individual can pool money to purchase a pizza with her friends just like an individual can pool money with his friends to purchase a radio ad or television spot. Both are collections of individuals coming together to complete a common goal. Does it matter if they also form a corporation to do the same things?
6. Claim: After Citizens United, foreign organizations will be able to exert influence that they previously couldn’t.
The majority opinion in Citizens United explicitly did not reach the question of whether the “Government has a compelling interest in preventing foreign individual or associations from influencing our Nation’s political process”5 because the federal government already prohibits a foreign national to, directly or indirectly, make an expenditure, independent expenditure, or disbursement for an electioneering communication. 2 U.S.C. §441e does not leave much to the imagination unless that imagination belongs to President Obama.
7. Claim: Rich business powers will be able to get their preferred candidates into power because voters can be duped.
Even after Businessman Sheldon Adelson spent $21.5 million and heavily supported PACs favorable to failed Republican presidential candidate Newt Gingrich, Gingrich only won a few states in his bid for the Republican nomination. Gingrich still had to face the voters and they did not like what they saw.
8. Claim: Powerful union bosses will be able to get their preferred candidates into power because voters can be duped.
Unions detested Arkansas Senator Blanche Lincoln for not supporting pro-union card-check legislation. Empowered by Citizens United, union affiliated groups spent millions trying to defeat Lincoln in the Democratic primary. They were unsuccessful and Lincoln went on to get trounced in the general election. Even with the element of surprise as the first serious contest after Citizens United the unions were not able to beat a politician who would go on to lose decisively.
9. Claim: Shadowy foreign corporations will use nefarious powers to influence honest American elections.
What is the true line of division between a foreign and domestic company in today’s globalized economy? It is blurry to say the least. President Obama bemoans the influence of foreign corporations on American politics but it doesn't make sense to silence a company like European based Airbus, which is building a new factory with 1,000 new jobs in Mobile, Alabama. Senators and representatives from Alabama will influence the success of Airbus like Senators and Representatives from Tennessee influence the success of foreign company Volkswagen that has a plant in that state. If a company feels strongly enough about American domestic policy to make an independent expenditure than it is likely that they have some connection to America. What size stake in public affairs does a company need to have to not be silenced on the sidelines?
10. Claim: I like free speech but Citizens United allowed groups to obscure who is really speaking and that is un-American.
The Constitution of the United States was ratified because of a pro-Constitution publicity campaign in the Federalist Papers. James Madison, Alexander Hamilton, and John Jay penned this collection of essays anonymously under the pen name Publius. If the young nation felt comfortable adopting the Constitution because of the ideas presented by unknown writers then why can’t today's voters, armed with modern technology, weigh the veracity of claims put forward by translucent figures?
11. Claim: More money in politics corrupts the system by lessening the importance of voting, which should be the primary way that citizens speak about politics.
Voting is only one of the many ways that Americans can register their preference for the direction of the county. The great recession has spurred many Americans to move to different states in search of new opportunities and new governments. Americans can express their displeasure with their feet, their letters to politicians, and their organization of groups. Independent expenditures are one way for citizens to speak out when politicians don’t need to worry about attracting their votes. A bright blue Democrat living in rural Wyoming will likely not see Democrats win many elections in that state soon. That individual could still make a sizable donation to fund independent expenditures in swing state Ohio. In this way citizens can be involved in national politics and help to advance policy preferences even when their vote locally does little to nothing.
12. Claim: Citizens United radically changed the nature of elections and introduced new forces into elections heretofore unknown to the electorate.
Utah and Virginia allow unlimited corporate donations directly to state candidates. Let that sink in for a bit. Not only can corporations there finance independent expenditures, they can also cut checks directly to state politicians. And yet, democracy has not ceased to exist in those states.
Independent expenditures must be separate from direct campaign donations, but before Citizens United corporations could already make independent expenditures and fund political advertising in 26 states. Could you name those 26? You would think that with all the money flowing to state candidates we would hear more about the corruption in those states. If politicians operating in the minor leagues can survive the onslaught of corporate money, why can’t the richer and more power federal politicians survive?
13. Claim: Citizens United is one of the most important, most perverse, evil, rotten, no good Supreme Court cases.
Citizens United sued in order to distribute their highly critical film Hillary: The Movie. Did Hillary Clinton lose her bid for the presidency because of that movie, or because of Obama’s caucus tactics? In the final judgment, Citizens United opened up more outlets and more sources for raising the volume of discourse in an election, but there is no proof that it has changed the outcome in a single election. So long as the rules for independent expenditures are applied to all participants, I don't know if more speech could change the result of a political contest. And really, if Citizens United does change the outcome of elections, whose voices have we been missing in our national debates?
1 Buckley v. Valeo, 424 U.S. 1, 48-49 (1976). Buckley is the point of origin for modern campaign finance law and created the groundwork upon which modern law still operates. http://supreme.justia.com/cases/federal/us/424/1/
2 Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990) (Overruled by Citizens United). http://supreme.justia.com/cases/federal/us/494/652/case.html
3 Federal Election Commission v. Beaumont, 539 U.S. 146, 149 (2003). http://supreme.justia.com/cases/federal/us/539/146/
4 FCC v. AT & T, 131 S.Ct. 1177, 1185 (2011). http://supreme.justia.com/cases/federal/us/562/09-1279/
5 Citizens United v. FEC, 130 S.Ct. 876, 911 (2010). http://supreme.justia.com/cases/federal/us/558/08-205/