Tag Archives: Citizens United

Those Unintended Consequences

Tomorrow is election day–and I plan to breathe a sigh of relief, not just because the polls suggest generally albeit not totally sane consequences, but because we’ll have a respite from the incessant ads, if not from the punditry. (The effect of Hurricane Sandy, the impact of Facebook and Twitter, the various Wars on women, immigrants, poor people….the one prediction I am utterly sure of is that there will be two favored theories for every one talking head.)

I’m actually working on a theory of my own. It doesn’t explain any election result, and it may well be proven wrong when all is said and done, but I think it’s worth considering. I think Citizens United may have backfired on some of the people who were most elated when the decision was handed down, the people who were so certain the decision would give them the wherewithal to win big.

What do we know now about the unbelievable piles of money that were thrown at this year’s election?

Well, it muddled a lot of messages. All those SuperPacs, with their own consultants and PR “experts” didn’t necessarily adopt the messaging favored by the campaigns they weighed in on. The result in many places was a constant din of competing ads that didn’t reinforce any particular argument or advance a predetermined campaign theme. In some cases, this actually worked against the candidates the SuperPacs supported.

We also know that a lot of that money was wasted. (I don’t care, but I bet there are some corporate shareholders who do.) Not only was money wasted on inconsistent messaging, it  was wasted by being spent independently on radio and television advertising . Broadcasters have to sell time to candidates at a discounted rate; they don’t have to offer that favorable rate to SuperPacs and other independent entities, and they don’t. Giving money to the campaign and allowing the campaign to buy the air time (as was the case before the Court opened the money gates) thus produced a much greater “bang for the buck.”

There have also been a number of reports of last minute spending sprees by the SuperPacs in states that are uncontested–states where the Presidential vote is a given and there is no other high-profile race to be influenced. Maybe it’s a last minute effort to drive up popular vote totals, but I doubt it–at this point, everyone but Seamus the dog has decided who they are voting for, and even if they haven’t, the airwaves are so saturated, new ads are probably occupying that coveted 2:00 am slot that used to be Ronco’s. It’s more likely that this last minute spending binge is being promoted by the only people other than broadcasters who have really benefitted from Citizens United–the politicians, consultants and media buyers running the SuperPacs and 527s.

Perhaps the most ironic consequence of all, however, is slowly dawning on state political parties. As several pundits have pointed out, SuperPacs have nationalized the election to an unprecedented degree. One result is that state party chairs who initially welcomed the prospect of big bucks flowing into their coffers have found their own influence and control considerably diminished. (It’s the Golden Rule, fellas: he who has the gold, rules.)

When Citizens United was decided, there was considerable glee among Republicans, especially, who felt–not without reason–that the ensuing flood of dollars would mostly benefit the GOP. Many of the political people I know–on both sides of the aisle–believed that a virtually unlimited supply of corporate money would assure a Romney romp to victory and would grease the numerically probable Republican takeover of the Senate. Both outcomes look pretty dubious right now, although anything can happen between now and Tuesday; should Romney pull out a win, it will be by a hair, and at this writing, the Senate takeover looks pretty unlikely.

An old political friend of mine likes to remind me that, in contests where the opposing candidates both have sufficient resources to get their messages out, the guy with more money doesn’t necessarily win. If a candidate is gaffe-prone, clueless or generally unlikeable–or if he has a message that voters reject–campaign cash alone usually won’t fix that. Money can buy a lot of lipstick, but as a general rule, if people decide your candidate’s a pig, lipstick isn’t enough.

I hope he’s right. Right or wrong, we’ll know soon.

Money Matters

When the Supreme Court decided Buckley v. Valeo and declared, in essence, that money equaled speech, I agreed. I have always been a free-speech purist, and it seemed reasonable to me that the freedom to express my opinion should include my freedom to spend my money supporting issues and candidates with whom I agreed.

I was wrong. The Court was wrong. Money is not speech, and corporations are not “people.”

Citizens United should have been a predictable consequence of Buckley. Recent experience teaches us that reasonable restrictions on political spending and insistence on full disclosure are absolutely essential to the democratic process.

I do not make the argument that the candidate with the most money will always win an election. There are plenty of examples to the contrary, and lots of reasons besides financial ones why elections are won or lost. That said, in order to be viable, candidates need enough money to compete, to get their message out. Money more often than not makes the crucial difference.

Here in central Indiana, the airwaves are already full of gauzy, saccharine 30-second spots introducing us to a new and improved version of Mike Pence. The real Pence polls high negatives. He has a legislative record that is–to  be kind about it–undistinguished, and a hard-right self-righteousness that is off-putting. He is also clearly favored to win the gubernatorial race, for two reasons: he will have lots and lots of money, courtesy of many of the same plutocrats who supported Scott Walker; and his opponent, who has shown an unfortunate propensity for unforced political errors, has thus far not raised nearly enough.

If Gregg continues his lackluster fundraising, Pence will continue to dominate the airwaves, airbrushing his own persona and redefining Gregg’s. By the time November rolls around, voters will choose between two caricatures bearing very little resemblance to the flesh-and-blood individuals upon whom they are based.

This situation is not unique to Indiana. Thanks to our conflation of a right to spend unlimited sums of money with a right to freedom of expression, we have turned campaigns into arms races, where a candidate’s ability to ingratiate himself with big-money donors outweighs any other strengths he may bring to the table. Even good candidates find themselves compelled to spend untold hours fundraising, at the expense of the sorts of “retail” politics in which voters have unmediated contact with candidates for office.

Given enough money and a really good media operation, Lady Gaga could run for office as a clone of Mother Teresa. It wouldn’t be any more of a stretch than Mike Pence pretending to be someone who cares more about jobs and the economy than about demonizing gays and de-funding Planned Parenthood.

Houston, we have a problem.

Church and State in Texas

A friend recently sent me a copy of a Court Order approving a settlement in a hotly contested case from a small town in Texas. The Plaintiffs had complained that the school corporation engaged in pervasive and unconstitutional religious activities over a period of years–prayers over the loudspeakers, constant religious references by the Principal, prayers at athletic contests and graduation ceremonies and more. Students who complained were disciplined.

The judge’s opinion–especially the unusual “Personal Note” that he added–are worth reading in their entirety; the Personal Note appears below. His Appendix–which is not reproduced, but is also accessible on line–is a first-rate history of church/state relations through American history. I particularly appreciated the opening section of the Opinion, “What this case was NOT about,” in which he made a point not sufficiently emphasized: any child can pray in school at any time. The issue is whether public school officials–arms of the government–can promote or require that prayer.

Americans United for Separation of Church and State issued a press release detailing the major elements of the settlement:

* School district personnel will not display crosses, religious images, religious quotations, Bibles or religious texts, or other religious icons or artifacts on the walls, hallways, and other areas at the school.

* The district will not invite speakers, including government officials or community leaders, whom it has reason to believe will proselytize or promote religion during their remarks.

* The Medina Valley High School student handbook will contain a section on students’ rights to religious freedom, including the importance of respect for and tolerance of students from all backgrounds and the specific procedures for registering a complaint with district personnel about violations.

* The district will provide annual training to all district personnel who interact with students or parents or who supervise those who interact with students or parents. The training will cover a variety of topics related to students’ rights and church-state separation.

The release clarifies the terms of the agreement, but it’s only when you read the brief “Personal Statement” the Judge appended that you really appreciate the nastiness of the controversy, and the tenor of the “debate” conducted by the “religious” folk involved.


During the course of this litigation,many have played a part:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination:In His name,I forgive you.

To those who have prayed for my death: Your prayers will some day be answered,as inevitability trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals:You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients’ respective positions:Bless you.”




Two Wrongs, Eroding Rights

January 21st was the 2-year anniversary of the Supreme Court’s decision in Citizens United. 

The anniversary was marked with a number of protests, and an even larger number of news articles and blog posts documenting the dramatic growth of political “Super Pacs” and other unaccountable third-party political actors in the wake of that decision.  We have seen an almost unimaginable amount of money being spent to influence–okay, buy–elections.

As a guest blogger for the American Constitution Society recently wrote,  “people are expressing outrage about the corrosive effect of big money in politics, particularly in the wake of the Supreme Court’s ruling in Citizens United v. FEC.

This outrage is well founded –  in a report Public Citizen published one year after the Court’s disastrous decision – we found that spending by outside groups jumped to nearly $300 million in the 2010 election cycle, from just $68.9 million in 2006.  The donors for nearly half of this independent money spent remain undisclosed. And, that’s just a taste of what’s to come.  The influx of independent expenditures in allowed by Citizens United will bump up election campaign spending to record levels in 2012; by some accounts to as much as $8 billion, dwarfing previous records.

We want to get big money out of politics, but do that, you have to engage the very system that is weakened and undermined by that money. The deck seems stacked.  How does an ordinary person find a way to make that change happen?”

The entire post is worth reading, and the author concludes–as have many others–that we need a constitutional amendment that would overturn the decision and confirm that corporations are not people.

I agree that such an amendment is warranted, if incredibly difficult to pass. But as a retired Judge told me several months ago when we were discussing the case, the real travesty was the earlier decision in Buckley v. Valeo, in which the Court equated money with speech. That was the decision that made Citizens United possible.

We all know that wealthier people have more clout in every society; they always have and probably always will. Wealth buys privileges–it allows people to get better educations, join organizations that are influential, have more leisure, hire lobbyists, and access a wide variety of other social “megaphones” that allow them to influence others. That’s just reality–an inescapable consequence of free speech in a market economy, and in my view, an acceptable if regrettable trade-off.

But Buckley and Citizens United  vastly increase the power of the rich at the expense of everyone else. Rather than helping to level the playing field by upholding laws that would have moderated political advantage, those decisions dramatically increased the disparity.

If money is speech, and corporations are people, the 1% will always own the political process.

A Step in the Right Direction

The Supreme Court’s decision in Citizens United should have been a wake-up call for those of us who have been concerned over the growing power of corporate America. Corporations have their place–by shielding entrepreneurs from personal liability, they encourage risk-taking and innovation; I have no problem with the corporate form as a useful business mechanism. (Although I do find it ironic that the growth in corporate hegemony tends to be applauded by people who talk a lot about the need for poor people to exercise “personal responsibility.” Corporations were invented to allow people to escape personal responsibility.)

The problem isn’t with the existence of corporate entities, the problem is with confusing these artificial constructs with human beings, and awarding them rights. There’s a reason we call our individual liberties “human rights.” When the Supreme Court essentially ruled that corporations and labor unions could give unlimited amounts to political candidates and causes, and justified that ruling as “free speech,” most observers–certainly this one–considered the decision both ill-considered and extremely dangerous. When the Senate refused to pass a measure requiring disclosure of such contributions, the floodgates seemed permanently open. We are going to see unprecedented sums spent by the 1% to influence the 2012 elections, and distort the electoral process.

The influence of money on our government has been well documented, and the picture isn’t pretty, but I was heartened to see President Obama taking at least a small step toward limiting the wholesale purchase of policy.

It has been reported that the President is drafting an executive order that would require companies pursuing federal contracts to disclose political contributions that have been secret under the Citizen’s United ruling. Despite howls from the usual suspects, this is a modest “good government” measure that does not violate anyone’s free speech rights. If a company wants to do business with government, and receive payment from our tax dollars, we the people have a right to know whether that business has been contributing to lawmakers and/or government officials who will influence those contracting decisions.

It’s not enough–we need to reign in the increasingly common use of obscene amounts of corporate money to gain political advantage. But it’s a start.