by Evan Palenschat
In his State of the Union address in 2010, President Obama rebuked the Supreme Court for reversing “a century of law . . . that will open the floodgates for special interests to spend without limit in our elections.”
Obama was referring to the now infamous Citizens United decision declaring that corporations and unions have an unfettered right to spend without limit to influence U.S. elections. While the President’s comment was not completely accurate, the Court did come to its conclusion by overturning two of its prior decisions and invalidating a federal law on the books since 1947.
Obama’s comment about special interests bankrolling elections refers to potential corruption in the system. Justice Kennedy, writing for the Court in Citizens United, believed that independent corporate spending to influence elections did not cause corruption or even the appearance of corruption.
His reasoning: since there was no coordination between spenders and candidates, there was no corruption problem.
Some commentators believe Kennedy’s narrow view of corruption does not align with reality. Harvard Professor Lawrence Lessig refers to “dependence corruption.” He argues that our representatives should depend on the people alone for election, not special interests.
Regardless of how you define corruption, it is evident that independent spending, largely through super PACs, has increased dramatically since Citizens United. Slate reports that such spending has more than doubled compared to past presidential election years.
Proponents of Citizens United argue that the fear of corporate treasuries hijacking our elections is unfounded. After all, it is mainly incredibly wealthy individuals, as opposed to corporations and unions, which are funding super PACs.
However, these advocates either fail to realize or ignore the real problem; the focus should not be on how much special interests are allowed to spend to influence our elections, but that they are allowed to spend at all. Our politicians are meant to depend on the people alone for their power and position, not super PACs and special interests who are not permitted to vote, but whose expenditures nevertheless greatly impact who is elected and which issues our representative focus on once in office.
The fear of corporate and union money corrupting our political system is over a century old. After the 1904 presidential election, allegations that the “trust busting” President Teddy Roosevelt had received much of his campaign funding from large corporations led to the passage of the Tillman Act of 1907, which banned corporate contributions. The federal law was extended to union contributions during World War II and banned independent expenditures in 1947. Such expenditures were seen as a circumvention of the contribution ban.
Justice Kennedy discounted this century of Congressional struggle by reintroducing corporate and union spending to our elections. This decision has left our campaign finance laws open to further attack. One federal judge has already used Kennedy’s reasoning to invalidate the federal ban on direct contributions from corporations to candidates running for federal office. If this decision is allowed to stand, not much will be left of our campaign finance laws. Congress will be limited to laws requiring disclosure of contributors and rules on coordination between candidates and super PACs, both of which have been found weak and unworkable.
Some commentators believe that the creation of voluntary public funding systems for elections will effectively combat corruption in our elections. However, the Supreme Court made the formation of such public systems more difficult in 2011 when they decided Arizona Free Enterprise v. Bennett. This decision invalidated Arizona’s public financing system, which provided funds to opt-in candidates whenever privately funded candidates spent over a certain threshold. The Court ruled that this type of “leveling the playing field” was unconstitutional under the First Amendment.
As a result, “trigger funds”, as they are known, have been scrapped from public finance systems across the country, including in New York City, where the Campaign Finance Board recently scrubbed any mention of this mechanism of leveling the playing field from their website and literature.
As for the Presidential election this year, Americans will likely see the full effects of allowing unlimited spending by special interests. As millions upon millions of dollars are raised and spent by these organizations our televisions, radios, and internet browsers will be seized by ads condemning every move the candidates make.
After the dust settles in November, Americans will pause to wonder how their democratic process has moved so far afield from what was intended.