Campaign Financing, Citizens United, and Disgust!

November 3, 2014

Tuesday is Supreme Court day here at Mark Rubin Writes. Alas, on the first Tuesday in November in even numbered years, we also have federal elections, which brings to mind a natural nexus between the Court and elections. What‘s the nexus, you ask. Citizens United v. Federal Election Commission, No. 08-205.

Many have heard much about Citizens United. The big play is “corporations are people, my friend,” the statement from Governor Mitt Romney during the 2012 campaign. Here’s a bit of reality about what Citizens United did and did not do, and why it has helped in furthering the destruction of our politics.

Citizens United began as a case about whether the Federal Elections Commission has the constitutional authority to ban an anti-Hillary Clinton documentary within 30 days of 2008 presidential primaries. (Now, six years later, a regulation banning anti-anything anything seems quaint!) The parties asked the Court for one thing only:  a ruling on the constitutionality of the statute which prevented the showing of the documentary within the time frame prior to election.

Through machinations not worth discussing here, we ended up with a rare re-argument of the case in the 2009-10 term, and a decision which went broader and deeper than what Citizens United asked for, holding that corporations and labor unions had the right to spend money to support or oppose candidates for political office. (Don’t believe for a minute that Citizens United was anything but the product of an activist, right wing majority on the Court. When the Court reaches issues which are not part of the lawsuit, that is activism.) The decision, while it does not make corporations into people—that concept has been around for almost 200 years—and did not allow contributions by corporations or labor unions directly to candidate campaign treasuries, created an “anything goes” sense, and we are reaping the consequences.

I appreciate the importance of the First Amendment, and I do think in the area of speech less regulation is often better. Further, we re-elected a president in 2012, despite massive outlays for anti-Obama advertising by corporations. A huge number of small donor contributions to the re-election campaign offset the attempt to buy the White House. and demonstrated that big money may not win, always!

That all said, and with a final reminder that our problems did not begin with Citizens United and would not be gone if it was overturned, our campaign system disgraces us! It’s a system designed by and for the mediums which sell advertising time and space, and the consultants who pocket 15% plus for placing the ads. We can feel good, or not, about the transfer of wealth from Kochs, Sheldon Adelson, George Soros, et al. to broadcasters, Karl Rove, James Carville, et al. On the other hand, we claim we are the exceptional nation, placed here—some say, by G-d—to lead all other nations, and we run the shittiest elections around. The television commercials are full of lies and vitriol. We learn nothing important about the people running for office, and end up with “gotcha” moments and little else. Even people like me who don’t watch television hardly at all are exhausted, and if the commercials don’t wear us out the 15-20 “sky is falling” emails asking for donations every day will.

We can do better, surely, and yet we have an evident “nothing to see here, move along” attitude about our system. There is no evident concern on the Court about campaign finance issues. Congress has within its power the ability to modify sections 527 and 501(c)(4) of the Internal Revenue Code (which, in tandem, allow for unlimited spending and no meaningful disclosure about who the spenders are), but no one even suggests action. In the old days—10 years or so ago—Senator Mitch McConnell (R-Ky.) advocated for no contribution limits and immediate disclosure of all contributions. Now, yes on the former and no on the later, for disclosure might infringe on donor privacy.

On campaign finance, as with so many other issues, the most advanced nation on this Earth cannot avoid tripping on its own two feet. More’s the pity, too, for as long as we have a system focused on opaque heat—with no light shining through—we’ll just keep leaving our citizenry behind. I’m old, and I’m a political junkie through and through, but if I was 22, like my daughter, I can’t imagine why I’d care one whit who we elected, and if I did care, I imagine only reproductive rights would be an issue of concern. That tells me we’re on the wrong side of the bell curve!


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