Monday, January 27, 2014

Campaign Legal Center misunderstands Citizens United, First Amendment

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

No comments:

Post a Comment