The Disturbing Trend Series- Part 2: Liberal Attempts to Undermine Citizen's United

Probably no recent decision has been in the craw of Liberals more than the Citizen’s United decision. Besides leading to an ill-informed State of the Union rant by Obama to the faces of the Supreme Court, the law is alleged to have opened the flood of money into the electoral process. Since that decision, lower courts have generally expanded upon the findings of Citizen’s United and struck down other campaign finance restrictions. In short, liberals were losing the arguments in the lower courts until the Montana Supreme Court upheld a state campaign finance ban on corporate money in state elections. This may lead to a revisit of Citizen’s United in the October, 2012 term.

To summarize briefly, the Supreme Court, in Citizen’s United, came to a couple of “controversial” conclusions. The first was that corporations (and unions), as collections of individuals, had certain constitutional rights. In effect, the Court concluded that corporations, as far as campaign finance was concerned, were to be treated as “persons.” This led to the rebuke by liberals that corporations are not persons within the meaning of the Constitution. However, a simple perusal of a law text book or even Black’s Law Dictionary would indicate that the word “person” or “personhood” is ascribed to corporations. In effect, as a collection of individuals with a common goal and interest, although a creature of the state, they have certain rights, among them free speech rights in political elections. Hence, outright bans on corporate money in campaigns was unconstitutional.

The second finding was that outside advocacy groups have the right to enter the arena of political speech. The argument against this finding is that the influx of money into elections has somehow corrupted the entire system. In effect, they argue that the campaigning based on issue advocacy has somehow bought influence with eventual winners. Many of these outside advocacy groups are known as Super PACs and they exist on both sides of the political spectrum. As an issue advocacy group, they do not necessarily take sides directly in an issue and cannot coordinate their activities with specific candidates, but they no one is unsure of who they support. Naturally, sometimes these efforts lead to attack ads and the generally negative tone in politics. However, to assert that these groups alone are responsible for the apparent partisanship in politics today is akin to a total ignorance of history. Negative campaigning has been part of the American electoral landscape ever since George Washington decided to retire after two terms in 1800 and, some can rightfully argue, campaigning today is considerably more tame than in the past.

In the 2010 elections, I have shown that in the 2010 midterm elections how this influx of money has had an effect on the outcome of elections. Simply put, advocacy groups have a roughly 50/50 chance of being on the winning side. If this influx of money was so deleterious to the electoral process as liberals claim, one would expect a higher win percentage for the advocacy groups, yet we don’t see that. And the reason is simple- corporations and unions do not get a vote in the booth. Their members and stockholders do. To assert that the candidate that gets the most money or the most outside support necessarily wins the election is pure fallacy. Dollar bills do not vote; people do.

Regarding the corrupting influence of money, this is like the “chicken or the egg” dilemma. Candidate A supports offshore oil drilling and Candidate B opposes it. If you are Exxon, for whom are you going to advocate? Of course, you will throw your support behind Candidate A. And, of course, there are other issues that concern voters besides their stand on offshore oil drilling, but lets assume Candidate A wins. In Congress, they propose a bill to allow offshore drilling. Can we correctly and rightfully say that Exxon influenced that decision? They merely advocated for the candidate that best matched their view; they did not “corrupt” the process, nor did they “buy the vote” in Congress.

The case winding its way towards the Court originates out of Montana. There, their Supreme Court upheld a state law that bans direct corporate donations or advocacy for candidates in state elections. After the decision was reached, a stay was granted which blocked the Montana Supreme Court’s decision from going into effect. Briefs have been filed with the US Supreme Court to intervene. They have yet to place it on their cconference docket, although it may be taken up on June 14th. A decision to grant the petition may come before the end of this term, but oral argument would not be heard until after the 2012 elections with a decision sometime in 2013.

The challengers- corporations- are arguing for summary reversal of the Montana Supreme Court. Summary reversal, without comment, is an unceremonious rebuke to sometimes rogue lower courts. The corporations argue that the Montana campaign finance law falls into that category- a lower court clearly defying a Supreme Court decision. For the state and its many supporters, the arguments are many. Some call for another look at Citizen’s United in light of the recent influx of money in the process. Others claim that the lawsuit against Montana is forbidden given the state’s legal immunity under the 11th Amendment. Some argue that the decision in Citizen’s United was just plain wrong from the start. Here, the Court stated: “We now conclude that independent expenditures…do not give rise to corruption or the appearance of corruption.” We can quibble about the “appearance” aspect of that statement. As far as actual corruption goes, all the opponents can use as proof is the increased spending and influx of “outside expenditures.” In all the briefs thus filed, they cannot point to a single instance of actual corruption. In all the filings, they cannot cite a single “vote bought.” All they can do is decry the amount of money in the electoral process.

One important note of interest: when the Supreme Court decided Citizen’s United, they refused to strike down requirements that the source of funding could be required to be disclosed. Yet, Congress has failed to codify that through legislation. They attempted to do so through the Democratic Party-written DISCLOSE Act which was designed to actually chill political speech and advocacy.

This is the disturbing and typical response of Liberals. Their attempts to limit spending are an attempt to protect us against ourselves. They start from the assumption that campaign contributions and independent political advocacy necessarily translate into later corruption. They start from an equally scary assumption voters are stupid and are easily swayed by political advertisements. My experience is that people become fatigued by the constant bombardment of political advertisements. Instead of looking at that 50% success rate of those who receive the most outside support, why not look at the other 50% where the level of spending makes no difference? Even if money does make a difference- and that is somewhat doubtful in most cases- there are checks on it. There are bribery laws, there is a plethora of journalistic outlets keeping an eye on legislators and the money flows. Most importantly, there are elections every two, four or six years. They also overlook the fact that the more voices in the political arena, the greater the flow of information. Obviously, some of that flow of information is skewed one way or the other. And this is a major difference between conservatives and liberals. Liberals start from the assumption that the electorate is stupid and votes as the money flows. Conservatives have a better view of the American electorate in that they can sift between the bull and the truth and make their own decisions intelligently. There will always be a segment that will fall for the bull on either side, but that has always been the case. Citizen’s United did not create that reality. For every conservative Super PAC, there is an equally large liberal Super Pac. What really disturbs liberals is that the playing field as concerns political contributions and advocacy has been more evened out. It is the same reason why liberals support a Fairness Doctrine. Once the playing field is evened, they cry foul. Hopefully, the Supreme Court will take this case and use it as a rebuke to rogue state courts seeking to exempt themselves from Citizen’s United on nefarious, liberal arguments.