So, You Heard About Citizens United…

Alright friends, lets get down to business. Primary season is just around the corner and there’s some things we need to clarify. Over the next few days, I’m going to be talking about campaign finance — an issue people bring up a lot, but rarely know much about. Here it goes.

Part 1: What is Citizens United and How Does it Work?

In 2010, the Supreme Court ruled, in a 5-4 decision, that Citizens United won a case they brought against the Federal Election Commission. As you all likely know, this case was about campaign finance. What you might not know, is that it’s about a very specific part of campaign finance rules.

So lets break it down! (Get hyped, this will blow your mind.)

(Full disclosure, I am not a campaign finance lawyer, I have not even been to law school. However, I worked at the Federal Election Commission this summer for the chair and I have read the entire opinion and discussed it with people who are lawyers who know a lot about this subject.)

Election law is pretty complicated, so we’re going to focus on the specifics of this case. The main issue at hand was a section of the  Bipartisan Campaign Reform Act (BCRA) that banned corporate-funded independent expenditures. An independent expenditure is an when a money is spent on communications (like TV ads, fliers, postcards, etc.) that expressly advocate for a clearly identified candidate’s election or defeat. These communications may not be made in “cooperation, consultation, or consort, or at the request of suggestion of candidate,” the candidate’s campaign, or the people who work for it, or a political party, or the people who work for it. Basically, independent expenditures are expenditures made completely independently from the official campaign and are usually backed by corporations.

In a nut shell, the Court decided that banning corporate political speech all together was unconstitutional. What that means is that corporations, post summer 2010, were allowed to make independent expenditures in elections. This lead to the creation of groups whose sole purpose was to make independent expenditures. We call those groups independent expenditure only political action committees, or super PACs.

The biggest thing that differentiates a super PAC from an official campaign is that there is donation limit. A person can only donate $2,700 to an official campaign, and only individuals can donate. No corporations can donate to campaigns. So, when you hear candidates talk about how this corporation and that corporation have donated to their opponents campaign, that’s not what’s actually happening. Individuals who work for those corporations are donating directly to that campaign (more on this in a post coming soon!).

A corporation or foundation can donate as much as it wants to a super PAC, but the PAC still has to disclose its donors to the Federal Election Commission, who makes this data available to the public.

If you just wanted the nuts and bolts of it, stop reading now! But, if you want to be the talk of the town at cocktail parties (or your local Frat, for my young viewers) KEEP READING! It’s gunna get real.

Part 2: Is the Protection of all Political Speech a Price We Must Pay?

Buckle up folks, and get ready for a crazy ride! You just might rethink everything you thought to be true about money in politics. If only for a second.

Justice Kennedy argued in his majority opinion that political speech is the most valued type of speech in America, and that no one should be deprived of any kind of political speech, because all of it is valuable to the discussion. He argues that political speech is “central to the meaning and purpose of the First Amendment.” That means that Congress isn’t allowed to  inhibit speech, especially political speech, and that this protection extends to corporations. He writes, “political speech is indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.”

That’s not even the best part!

Because the identity of the speaker is inconsequential to political speech, the “Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections.” It cannot use “censorship to control thought,” which is what it does by preventing corporations from speaking in elections. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.” He continues, arguing that “no sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”

He also says….

Wait for it…

That “it is irrelevant for purposes of the First Amendment that corporate funds may ‘have little or no correlation to the public’s support for the corporation’s political ideas.'” He uses the famed Federalist No. 10 to support this argument, saying that the best way to prevent the rise of factions is to permit them all to speak and give the people the power to judge what is true and what is false.

It keeps going, but here comes the big finish….

The 5 majority Justices all agree that, “the appearance of influence or access [of corporate speakers] . . . will not cause the electorate to lose faith in our democracy.”

 

And there you have it. Citizens United v. The Federal Election Commission, broken down and summarized. See? It wasn’t that bad! Isn’t election law fun?? I certainly think so. Keep an eye out for next week’s post that explains where the money in the election is coming from!

But, before I leave you, I want to bring up the question that titles this section. Reflecting on theses arguments, which flow fairly logically, do you think that the protection of all political speech is a price we must pay for a functioning democracy?

 

 

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Seriously, Read the Constitution

Anyone who knows me will know that I’m mildly obsessed with the Constitution. Just mildly. Sitting in my dorm room, I can see from my bed The Bill of Rights, hanging on my wall. If I look up, I can see The Constitution of the United States of America. When I get up to get dressed in the morning, I’m facing The Declaration of Independence. I get ready and go to class in the morning, and when I put my keys in my bag, I see my pocket constitution and declaration. Back in my room, I have four more bound copies of the Constitution, all of the Federalist Papers, the Bill of Rights, selected speeches by the founding fathers, and the soundtrack to Hamilton the Broadway Musical.

How is it, that an 18 year old college student, who has never taken a college level American History course, been to law school, or held political office can know more about what’s in the Constitution than 75% of the people running for President? Granted, three of them have likely also never done those things, but that’s beside the point. Some of these candidates are very well qualified, and I have to assume that their rhetoric is largely political.

Our country is based on trust in its founding documents, but we have Governors across the state declaring that they will not accept Syrian refugees, some of them going as far as to say that they will accept Syrian refugees, but only Christian ones.

Hines v. Davidowitz, a Supreme Court case from 1941 recognizes that the Constitution gives the federal government general authority over foreign policy and international affairs. It also uses Article VI to argue that immigration law is like an agreement with other countries and thus the federal government has exclusive authority over it (my apologies to any lawyers, this is a very brief and oversimplified summary). Further, the Refugee Act of 1980 gives the President the power to determine when there is a refugee crisis and how it should be handled.

Therefore, the states have no power to refuse refugees. I can think of several other places in the Constitution that could be used to support this argument, but I don’t have a law degree so I will refrain from doing so here.

It is absolutely absurd to me that there are people who think they are qualified to run this country. How can we trust them when they say “this is not what our Founding Fathers intended” if they also seem to ignore key elements of the constitution. Senator Ted Cruz said this summer that have nine robed, unelected justices make decisions for the rest of the country is unconstitutional*. Then, this fall in a debate, he said that he knew better than the Chief Justice because he clerked with Chief Justice Rehnquist as a young man. This is doubly ridiculous because he and Chief Justice Roberts both clerked for Rehnquist! Senator Cruz is an incredibly intelligent man, and I respect the arguments he made above about judicial activism. However, when he went on television a few days later and made similar remarks, he dropped all of the high level legal analysis and went straight for the simple argument that the setup of the Supreme Court is unconstitutional. The only reason that’s politically advantageous is because so many people have never read the constitution that they wouldn’t know what was in Article III and that it explicitly established an unelected judiciary. To me, this is the problem. Not what Senator Cruz said, but why he was able to get away with it.

At the end of my Senior year of high school, I recomended to my classmate that they read the Constitution and other founding documents. Most of them laughed, because they knew that I’ve read it at least 7 times, but I was completely serious. There is something deeply disturbing to me that it is expected for high school seniors to complain about being assigned to read the Constitution in class. That we hardly care when candidates running for President on both sides of the aisle say things that are constitutionally questionable. I am appalled that my generation doesn’t take the right to vote seriously. People all over the world are dying every day, fighting for that right. And you don’t care? Why? How is it that our country has failed so miserably that the people who will post the most on facebook about injustice are also the least likely to turn out and vote to change it?

Posting on facebook isn’t going to change policy. It could help change national sentiment, but who cares about that if you’re not even going to vote? We are citizens of this country and we will be running it one day. It is our duty, no matter our profession, to be aware of our political history and be prepared to take on that responsibility when that time comes. For those of you who are 18, that time is now. You are the future infrastructure of America. Whatever your worldview, the success of our country depends on you getting out and voting. Try reading the Constitution, in any way shape or form. You could be surprise by its power.

 

* The article sighted here is written by Ted Cruz and is a very smart, far right argument that aligns with the beliefs of the conservative Justices on the bench today.