This was my final paper for my COM530 Class at Southern New Hampshire University-
Abstract
Campaign finance laws have been decimated in recent years. The Supreme Court ruling in Citizens United v. FEC received a lot of attention in the media. There were previous ruling that signaled that the court had been building toward that type of undermining of FEC rules. This paper explores the history of FEC rules and Court cases since the 1970’s. The effect of these rulings eliminated many disclosure requirements previously set up by Congress. Almost all of the spending limits from people and corporations have been changed. Then it looks at how these rules will change American democracy. It examines the effect of unlimited spending on freedom of speech and our right to privacy. The paper looks at the ethical implications of corporate personhood. Then the paper shifts to talk about the personal ethics of the author and of communication professionals.
Democracy is an idea as much as it is our system of government. Americans imagine our democracy to be based on the will of the people. You can certainly argue that our original democracy was imperfect and has been improving over time. Exclusion of groups, such as blacks and women, does not allow for the participation that we now expect. Democracies value political speech over other speech. It is impossible to be able to make a decision as an electorate without information. The courts have used this to justify many decisions about campaign finance.
Citizens United is truly about corporate personhood. Corporations must have some rights in order to operate. Corporations must be able to hold patents so they can benefit from their investment in research and development. There are different types of corporations that are differentiated by the IRS. Corporations can be publicly traded, closely held or not-for-profit. Nonprofits that are tax exempt hold a 501 (c)(3) designation and are regulated differently from other corporations. The IRS sets up many more restrictions on tax exempt entities because they are supposed to benefit the public. A 501 (c)(4) organization is a social welfare organization. They can participate in political activities unlike a 501(c)(3) (Murphy, 2012). A separate federal agency is in charge of election communication, the Federal Election Commission.
The Federal Election Commission was formed by Congress when it passed the FECA of 1971 (Mutch, 2014). The idea that money equals speech isn’t that old in terms of judicial precedents. It was established in the ruling of Buckey v. Valeo in 1976. The court also heard the case of First National Bank of Boston v. Belotti. This time the court was in even more clear in stating that because of the Buckley finding, spending was speech. They disregarded that the speaker was a corporation, speech can not be limited because of the First Amendment. One case where the court upheld campaign finance restrictions was McConnell v. FEC. At the time we had been relying on the Feingold-McCain Act, also known as the Bipartisan campaign reform act (BRCA) for our election spending cues. The problem was that there were limits on spending by corporations. The FEC allowed spending on certain commercials up until 30 or 60 days before an election. It was not due to BRCA but rather Buckley that there was a differentiation between issue ads and express-advocacy ads. The FEC allowed issue ads up until the election, as long as they did not name a candidate or use their voice. The Supreme Court upheld this as constitutional in McConnell v. FEC in 2003.
Citizens United v. Federal Election Commission was a Supreme Court case that will shape elections for many years to come. The case was filed by Citizens United, a 501 (c)(4) or nonprofit social welfare group. Since they took money from corporations as well as individuals they were bound by the stricter rules of BRCA. They wanted to show an ad in the regulated period 30 days before an election with the name of a candidate, which they knew would be pulled so they preemptively filed an injunction ("Citizens United v. Federal Election Commission," n.d.) The court held arguments in 2009 but asked that the plaintiff, Citizens United, submit an additional brief. They wanted to overturn Austin v. Michigan Chamber of Commerce. So instead of a strict interpretation that only applied to this case, the court ruling set a new wide precedent. They voted 5-4 to eliminate all limits on advertising. They said that any group can contribute to an advertisement; it was not constitutional to discriminate against donations from corporations or labor unions. They eliminated the Austin precedent that said that corporate donations had unequal weight and could be considered corruption. This ruling gave corporations free will to spend what they want. Now those social welfare organizations can accept unlimited funds without tracking donors. The rules of BRCA were eliminated.
It is important to note that the decision does say that corporations with foreign ownership are not allowed the same rights ("Citizens United v. Federal Election Commission," n.d.). So even though they say that corporations are they same as people, they retain the right to make distinctions between corporations. The justices recognized that our elections are domestic issues that we do not want to be overburdened by out of country influence.
The major shift in campaign contribution rules is not due solely to the Citizens United ruling. That ruling was used as precedent in a follow-up case in DC district courts, the SpeechNow ruling. They were fighting as a 527 to eliminate donor limits and disclosure requirements. The court found that disclosure had no effect on speech and ruled that in order to act as a PAC, they expected these organizations to file as PACs. After these decisions, the FEC updates its rules to comply with the court decisions. They opened up the floor for Super PACs to accept unlimited funds for advocacy from individuals or corporations. Super PACs can not coordinate their activity with a candidate. However, as comedian Stephen Colbert humorously pointed out, not coordinating is easy (Ulaby, 2012). There are many ways around the rules, a superPAC can hire from your staff, or you can comment on TV that you disagree with a commercial being run by a superPAC.
Since these rulings, the Supreme Court has heard another election contribution case, but no one was paying attention. McCutcheon v. FEC eliminated almost all limits on personal contributions. You can only donate $2,600 to a federal candidate every election, but primaries are differentiated from general elections ("Citizens' Guide," 2004). Your total annual contributions used to be capped. The Court eliminated that problem, saying that you can contribute to as many campaigns or separate PAC’s as you would like (Barnes, 2014). Your superPAC donations are unlimited, although they are posted online. Your donations to 501 (c)(4) groups are not tracked.
Corporations are not people. This is the rallying cry of those fighting back against the Citizens United ruling. This court case really brought campaign finance back to the front of many peoples minds. No one likes the amount of money in politics, except those spending the money. The 2012 Presidential election was the most expensive election in history (Cillizza, 2014). Corporate rights are tricky. We still haven’t given corporations the right to vote. But opponents of this ruling say that the unlimited cash flow will lead to the same results.
There are several questions that these Supreme Court rulings brought up in regards to communication. Does allowing unlimited corporate speech hurt individuals free speech rights. We will also examine the effect of untraced donations on our access to information, or alternatively our freedom of privacy.
The reasoning behind the Supreme Court decisions was that speech costs money. Unless a newspaper chooses your op-ed, you must pay for placement of an advertisement. The most effective forms of communication, like TV commercials, cost much more than a blog. But Sweet brings up a new form of speech that is much less expensive and able to reach a wide audience- email (2003). Political e-mails have their own ethical questions that haven’t been answered.
Free speech was created and is hugely responsible for political speech. Many rules are based on political speech. The question before the court was whether corporate free speech is on the same level as personal speech. “Free speech is a precious freedom, though, and public consciousness of political issues is vital to a healthy democracy” (Sweet, 2003).
Using the utilitarian approach, we must consider if allowing corporate donations, without disclosure, does more harm or good (Velasquez et al., 2009). The elimination of disclosure requirements is a double edged sword ethically. You can argue that eliminating disclosure would lessen the risk of quid pro quo. If your donations are anonymous, you can not ask for favors in return. Donors cite their right to privacy; they should not have to tell the whole world of their wealth if they do not want to.
The other side argues that we have a right to information. Especially with publicly traded companies, stockholders want accountability for where their money is going. The reason this part of the law was even challenged was because of Target. The company faced backlash from consumers and shareholders after it was revealed that they had been donating to anti-marriage equality groups (Middleton & Lee, 2014). It is this type of revelation that corporations are trying to avoid. There is no private equivalent of the freedom of information act.
These court cases that shifted the precedent so far on campaign finance are almost entirely due to a shift in the majority in the Supreme Court. The Citizens United ruling almost entirely reversed the thinking from McConnell from 10 years earlier, when the liberals had an edge in votes. It is concerning that the party of the judges can lead to drastic interpretations of the Constitution. The opinion by the liberal justices disagreed with the very basic premise that the majority opinion was using (Mutch, 2014). Courts do need to weigh in on campaign finance laws with more consideration because they are written by those they will benefit. Congress is now allowed to vote on pay raises that go into effect immediately because they realise the corruption. The passage of BRCA was quite historical, both sides of the aisle didn’t work together much then. It would be unlikely that our current Congress would be able to pass a campaign finance bill that the President would sign.
Ethically, the effects this ruling could have on our democracy were well examined by Heresco who said “Even if large donations do not lead directly to political
corruption, the appearance of quid pro quo itself has deleterious effects on public trust
and political engagement” (2012). For years, the role of lobbyists in Washington has been questioned as much as campaign contributions. We expect our elected representatives to pay attention to what their constituents think, not what corporations think. This can be muddled when a corporation is the main supplier of jobs in a district. Those who represent coal country do not vote for stricter standards for coal.
He is not alone in this assessment. The book by Roosevelt explained the reasoning the court used in upholding campaign contribution limits (2006). He said that unlimited speech is not the same as free speech. The reasoning behind the McConnell decision was to inject fairness. Limits on advertising simply even the playing field so that all speech can be heard, not just that of the rich. This assessment of ethical standards is not shared by all. Levy and Mellor argued that the courts are wrong to limit spending (2008). As libertarians, they believe that the government should interject itself as little as possible into our lives. They believe that if a candidate has more money, like Linda McMahon, there should not be limits on what they can do with it.
The question is: does any of this matter? Does campaign spending even influence elections? We can look at how much was spent per vote. We can also examine voter turnout to see if the massive injection of funds into the 2012 Presidential election after Citizens United changed turnout.
The Pew center research by Desilver notes the official voter turnout in 2008 at 57.1% and in 2012 it was down to 53.7% (2014). Voter turnout has never been higher. Shouldn’t we thank corporate spending for getting more people out to vote, which strengthens democracy?
Spending more money does not guarantee a victory in politics. One example was the Connecticut senate race. Linda McMahon took on established political veteran Representative Chris Murphy, and then later Attorney General Richard Blumenthal. She used her personal funds to run her campaign and in both race spent nearly $100 million (Applebome, 2012). She won neither race. In order to fend off her attacks, both candidates took money from the Democratic National Committee, but found much of their donations from individual donors.
The book by Kenneth Vogel started with a description of a meeting with President Obama and his ultra-wealthy group of donors (2014). If you can not afford the enormous price to get into these types of fundraisers, then how do you get access to your candidates. People have long dealt with corporate influence of politics. Americans expect that this influence starts after an election.
This ruling has a huge implication on my personal ethics. Because of this ruling, I find it more important to donate my time to campaigns. I will not personally be able to match the financial donations of a corporation. However, I can give things that a corporation can not. I have previously done door-to-door campaigning for candidates. I have yet to help in a campaign that actually feels contested. My time can be bought but I would not do it for money. I actually distrust campaigns that pay people to go door-to-door. You need a personal touch. My personal take is that this ruling is bad for democracy. I believe that advertising of candidates should be funded by individuals. Individuals are the ones that vote. I disagree with the court’s ruling on the importance of political speech. Advertising during elections is not informative. No one enjoys attack ads. “Laura Randall, of Fairfield, said that she had planned to vote for Ms. McMahon but that the campaign’s barrage of advertising had turned her off”(Applebome, 2012). There is a certain point where spending more money on campaigns will have no return on investment.
The reason Americans are so sensitive to this topic right now is the rising awareness of income inequality. Most of us will never be in the 1% that have exclusive access to the President and Presidential candidates.
Communications professionals are a diverse group. Some such as Susman are ethicists for lobbyists (2008). He pointed out that lobbyists have long Some are working for groups just like Citizens United and they benefit greatly from the ruling. Democratic groups may despise Citizens United but it is giving them a talking and rallying point. Neither side is going to back down on spending. Even President Obama who wanted to avoid using a Super-PAC had to give in and accept the help. Democrats are actually the ones who initially started exploiting holes created in FEC rules. Now they are blaming the Republican Supreme Court for Citizens United. Moyer (2011) wrote about ethical studies of public relations professionals. She discussed how organizations have to encourage an environment that promotes ethical behavior. There is no overall code established that communication professionals are bound to.
So as a communications professional, I will ignore this ruling. I would enjoy working in a position where I am in charge of political advertising. I think that political fundraising for the underdog organizations I support to be of vital importance after this ruling. Mayer noted that rules for nonprofit 501 (c)(3)’s are still being figured out (2011). I live in the reality that these decisions will not be overturned. The flow of money into politics is just starting.
References
Applebome, P. (2012, November 02). Personal cost for 2 Senate bids: $100 Million. Retrieved from http://www.nytimes.com/2012/11/03/nyregion/linda-e-mcmahon-has-spent-nearly-100-million-in-senate-races.html?pagewanted=all&_r=0
Barnes, R. (2014, April 2). Supreme Court strikes down limits on federal campaign donations. Retrieved from http://www.washingtonpost.com/politics/supreme-court-strikes-down-limits-on-federal-campaign-donations/2014/04/02/54e16c30-ba74-11e3-9a05-c739f29ccb08_story.html
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