Meredith McGehee, policy director at the Campaign Legal Center recently criticized Citizens United v. FEC in a four-year-anniversary piece. Ms. McGehee described what she views as several constitutional defects with the majority decision and its subsequent deleterious effects on American democracy.
But the evidence reveals her disappointment extends well beyond
this single case to embody a common misunderstanding of what the First
Amendment actually does. And she fails to credibly suggest how a Citizens United-less America
would benefit its people.
Ms. McGehee begins with the false premise Citizens United established "corporate
personhood” in the political realm. In fact, the majority cited twenty prior
cases where the Court had recognized corporate First Amendment rights.
Regarding political advocacy, the Court in First Nat. Bank
of Boston v. Bellotti, specifically
approved corporate political spending over 30 years before Citizens United.
A subsequent
case summarized Bellotti: “The identity of the
speaker is not decisive in determining whether speech is protected.
Corporations and other associations, like individuals, contribute to the
‘discussion, debate, and the dissemination of information and ideas’ that the
First Amendment seeks to foster.”
What Bellotti failed to do was reach the question of
whether doctrinal differences should exist between corporate speech concerning
referendums and other elections. Citizens
United settled this question
and in the process overruled the outlier Austin v. Michigan Chamber of Commerce,
(which relied on a dubious rationale) and Congress’s attempt to expand Austin in the ‘Bipartisan Campaign
Reform Act.’
Ms. McGehee’s misinterpretation speaks to a larger misunderstanding
about what the First Amendment protects. In the end, it is irrelevant when the
Court blessed corporate personhood. The First Amendment proscribes government
meddling with speech not speakers.
(Congress shall make no law . . . abridging the freedom of
speech). When Congress impedes corporate speech—for profit or not—it
inhibits the political marketplace and by definition acts outside the
Constitution.
Ms. McGehee champions this marketplace distortion lest gobs of
corporate money unduly influence politicians, and cause Americans to lose faith
in democracy. She points to polls stating the citizenry is “concerned” about
unregulated corporate spending. But is this supposed concern justified? And
would banning corporate political money revive faith in our political
institutions? Empirical evidence suggests not.
First, Citizens
United did not presage an
avalanche of corporate electioneering. Corporate money funded only 12% of Super PAC spending in the 2012
elections. And supposed “dark money”—money contributed to 501(c)(4) “social
welfare” nonprofits, and 501(c)(6) trade associations who can shield their
donors—accounted for only about 4.5% of total election spending in 2012.
Moreover, total spending to support a candidate was a poor indicator of electoral success. In close 2012 Senate races, the candidate with the spending advantage won less than 20% of the time.
Regarding faith in government, Canada is a campaign finance
reformer’s dream. Outside spending is strictly limited,
corporations are banned from contributing to parties or
candidates, candidate spending is tightly controlled,
donors receive subsidies to encourage political participation
by regular citizens, and taxpayers heavily subsidize political parties.
Moreover, Canada’s Supreme Court is dedicated to the concept of political equality
and a “level playing field.” Yet all this politics-by-fiat hasn’t done a wit to
improve Canadians’ outlook on its democratic institutions, which compare to American bottom-feeder levels.
Indeed, Americans may be “concerned” about many things, but
overall they trust themselves more than politicians. And they don’t trust Congress for much of anything.
Finally, Ms. McGehee’s lament about supposed unfair corporate
advantages in “access,” “influence,” and “favoritism” is curious. Corporations
seek the greatest influence not at the ballot box but through lobbying. For
instance, total lobbying expenditures in 2012 topped $3.3 billion. In contrast,
election-year “dark money,” which so disturbs Ms. McGehee, tallied less than $316
million, or roughly 10%. Clients pay lobbyists by their ability to access,
influence, and solicit favors from elected officials. Ms. McGehee is well
versed in working the corridors of power to those ends; last year The
Hill magazine named her a “top lobbyist” for the
seventh time in the past ten years.
By Paul Jossey
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