By Hirak Mukhopadhyay

Note: This essay was used for another assignment in the Department of Political Science & International Relations at the University of Delaware. With the exception of slight formatting and the addition of subheadings, this essay is being reproduced here with no changes to its original content.

The U.S. Constitution is the document that represents the Founding Fathers’ view of American democracy. But in the ruling of Citizens United vs Federal Election Commission, First Amendment free speech benefits allow corporations to make independent election expenditures and advertising, yet this does not wholly correspond to other precedents in other U.S. Supreme Court cases and is breaking the ideals of American democracy and other original principles of the Founding Fathers. Thus, the political change that should be made in United States is the Federal Congress passing a law to insert a ban on independent election contributions toward election communications in order to maintain the interest of original American democracy while making government more responsive to the will of the people.

U.S. Supreme Court history of “money in politics”

There are a multitude of Supreme Court cases that have shaped our campaign finance laws today. In Austin vs. Michigan Chamber of Commerce (1990), the majority ruled that regulations against corporations making independent expenditures in elections were justified because “Corporate wealth can unfairly influence elections” due to “large treasuries” but does not apply to non-profits, labor unions, or news media corporations¹. Later, Congress passed the Bipartisan Campaign Reform Act of 2002, which regulated “soft money” and “hard money contributions”, as well as limiting corporations (for and not for profit) and unions in broadcasting campaign messages². In the resulting case McConnell vs F.E.C (2003)., the opinion stated that campaign activity expenditures are not exactly free speech and that the regulations were also justified due to “both the actual corruption threatened by large financial contributions and… the appearance of corruption”, and also justified the broad scope of the law since “money, like water, will always find an outlet”³.

The next case, Citizens United vs. F.E.C. (2010), is when these laws began to unravel. The majority in that case ruled all corporations and unions who were previously not allowed to make independent political contributions or election advertisements are now free to do so due to the free speech that is awarded to them in the U.S. Constitution. Austin incorrectly gave the legislature authority to say that unions can make contributions, but corporations could not. The opinion also said that “There is no such thing as too much speech.”, and that there was not enough evidence to show that these expenditures would lead to corruption. Finally the majority bolstered their argument by using First National Bank of Boston vs. Bellotti’s (1978) ruling that allowed corporations to contribute to a political issue even if it does not pertain to their everyday activities^{4, 5}. For the most part, the aftermath of Citizens United is where American campaign finance stands today.

Problems with the ruling

It would be an understatement to say some do not agree with the legal interpretation presented in Citizen United’s majority opinions. In that majority, Justice Kennedy quickly and casually brushes off the “corruption” concern with monetary campaign donations. Justice White’s dissent in Bellotti and the majority opinions in Austin and McConnell all mention “Unfair advantage”, “unfairly influence”, and “corruption”, all of which being used in the context of “wealth”, “wealth”, and “large financial contributions”, respectively^5,1,3. Given the frequency of this synonymous language, how much more evidence of corruption did Justice Kennedy want? Would there ever be sufficient evidence of corruption? In addition, the concurrences of Chief Justice Roberts and Justice Alito address judicial restraint (hesitant to strike down laws) and stare decisis (precedent) when they both actually struck down and ignored two landmark U.S. Supreme Court cases and part of a federal law⁴.

False Precedent

The Citizens United ruling’s use of First National Bank of Boston vs. Bellotti as foundation is fragile at best. It appears that the Citizen United majority failed to understand the situation that was presented in Bellotti, as the two cases are profoundly different and are not directly related. Bellotti allowed corporations to make First Amendment protected political contributions towards state referenda and the question of imposing a state policy, not helping a political candidates win elections⁵. In a state referendum, there is no change in representatives because they have already taken their seats in the legislature. Citizens United acknowledged that Bellotti “did not address the constitutionality” of bans on “corporate independent expenditures to support candidates.”, but insisted that such a “restriction would have been unconstitutional under Bellotti’s central principle: that the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity”⁴. But Bellotti majority author Justice Powell showed no evidence of Bellotti’s principle leaning towards allowing contributions in elections because Bellotti never addressed the constitutional permissibility of corporate spending for political candidates to begin with. It is impossible to know for sure what Late Justice Powell would have thought on the matter. Despite this, Citizens United is assuming the Bellotti principle would support free speech for elections, but assumptions do not have the same weight as legal precedents.

Consequences of Citizens United

There is also a horrendous political outcome out of all of this that is mentioned in Justice Stevens’ 90 page dissent in Citizens United. At the end of Justice Stevens’ dissent, Stevens stated that “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics”⁴. Simply put, Stevens suggests very few people believe democracy needs wealth. So what is the relationship between wealth and democracy? As Stevens mentioned, America is a democracy, a fact echoed by historical figures James Madison and Chief Justice Marshall⁶. A democracy is “a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system”⁷. Regarding wealth, Stevens further explains its “unfair” advantage that all the other justices were talking about, by illustrating how corporations generate revenue and that same revenue will be given to that same corporation’s funded candidate, who may subsequently outspend his or her opponent due to more wealth⁴. That can lead for the wealthy corporation-backed candidate to have more commercials, absorbing more precious time on the airwaves and TV show commercial breaks, in the only avenue of information a potential voter may have. To dominate that avenue weakens the opposing candidate due to lack of remaining airtime left for that other opponent to present his or her reasons why they are the better choice. In other words, campaigns become an economic competition to see who can influence the voter more and who has more marketing prowess. Democracy’s definition, however contains the text “free electoral system”, where each candidate has a fair chance to enter government, not an atmosphere where more powerful and wealthier corporation-backed candidates can stifle and deprive the advertising ability of another. Therefore, corporate expenditures in election communications are not democratic. Politics is not an economic competition, but is about policy options, which will help the people choose who will best represent them via their vested power. Now however, it is not electoral candidates, but corporations who are skewing votes in their favor by more election communications.

Is a corporation a person?

A corporation is not a person, therefore it should not have such authority to choose an “elected agent”. This is also why a corporation cannot go to the polls and vote. With corporations reaching out to citizens through these communications promoting the candidate they want to win, corporations can now use citizens to go vote for their candidate on their behalf. The democratic U.S. Constitution begins with “We the People of the United States”, but if these same people are simply voting as a result of corporate influence, then this line should read “We the People Representing the Corporations of the United States.” or “We the People Representing International Corporations of the World Who Can Now Donate to American Campaigns Due to Citizens United”⁸.

The Pseudo Democracy

Thanks to Citizens United, corporations have now out-muscled democracy, a fear Justice White suggested in his dissent in Bellotti: “It has long been recognized, however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process.”.⁵ Therefore, Citizens United has created the horrendous outcome of a distorted pseudo-democracy. Democracy and unmatched influential wealth cannot co-exist. In the words of Supreme Court Justice Louis Brandeis, “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”⁹.

Straying away from Scalia’s Originalism

Justice Scalia joined the majority of Citizens United that claimed that corporations should be able to influence voters via wealth. Scalia is a textual originalist, one who looks for the literal meaning in text¹⁰. The literal meaning of the word “democracy”, comes from the Greek term demoskratia, meaning “ruled by the people”, not “ruled by people who are influenced by merchants and commerce”¹¹. Unfortunately, Scalia’s majority has led to a democracy that is not equal with democracy’s “literal meaning”.

But what about the Framers?

In a landmark case as revolutionary as Citizens United, one must wonder what the Founding Fathers would have thought regarding an instance where the wealthy influence the democratic process. According to the Federalist Papers, Alexander Hamilton would not have agreed with the majority in Citizens United. Hamilton finds “any plan to favor the wealthy and well born as impracticable”, and appears pleased at the notion of the government trying to “guard the least wealthy part of the community from oppression!”, the complete opposite of the Citizens United Majority which allows a wealthy corporation-backed candidate to stifle and oppress a less funded candidate by outcompeting them in electioneering communications. Hamilton also believes in voter equality, when he asks “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune.”, another contradiction from Citizen United’s ability to give the wealthy an advantage in the selection of representatives¹². Therefore, the ruling of Citizens United is in serious conflict with the Federalist Papers, which begs the question: Is Citizens United what the Founding Fathers would have wanted for America?

What would end Citizens United and corrupt corporate influence?

It is clear that the verdict in Citizens United is not parallel with previous federal laws, U.S. Supreme Court Cases, and views of the Framers of the U.S. Constitution. So what should be the solution to this discrepancy? Congress cannot change a ratified amendment and repealing and replacing the First Amendment is far too ambitious of a goal^{13, 14}. This should be act of congress which goes further than the Bipartisan Campaign Reform Act of 2002 and instead of regulating independent campaign contributions and communications, they should be banned altogether. Independent campaign contributions SHOULD NOT exist. Now that sounds like a violation of the First Amendment to not have any independent contributions, but there is a clear trail of legal writing that supports the notion that these independent expenditures unfairly bias elections in support of the campaign donor. That, in conjunction with independent expenditures producing an undemocratic society without “free” elections and being in tension with the views of the Framers should be enough justification to restrict free speech in this particular instance. Such an alarming threat to democracy itself should supersede the right to participate and express themselves in that democracy. Banning independent expenditures would also nullify the ruling in McCutcheon vs. F.E.C (2014)., which struck down monetary limits on independent campaign contributions and opened up the doors to unlimited campaign expenditures, starting an infinite fundraising competition between candidates which also raises corruption concerns^15,16. So how should elections be conducted in this country? In order to keep things fair, both candidates should have an equal personal campaign spending limit, and both candidates should have the same amount of commercials and total duration of those communications. That way, no candidate is able to appeal more than the other quantitatively in their advocacy, the same way both the prosecution and the defense get opening and closing statements in trial. These circumstances provide a completely “free” election, as any constitutionally-eligible candidate under these set of rules can potentially win a seat in office. Now that both sides are on an equal playing field, the question now becomes who has the better political skills and ideas, and which best represent the will of the people. The person who represents the will of the people the most will get the most votes and will win, due to the “power vested in the people” to choose their ideal representative, one that is chosen with the evaluations and reservations of no one but that citizen and his or own political opinions. That is the idea of democracy and government that follows the will of the people, or public opinion.

Petitions, Writs, and Amicus Briefs

No one should be naïve enough to believe such a ban on independent contributions will not have its day in court, but if an impeccable law is written by congress that highlights the retention of full democracy in this system, then even the judicial activist U.S. Supreme Court of today will struggle to immobilize such legislation¹⁷. This regulation is not an abuse of government either, as Chief Justice Marshall believed that the constitution permitted “a well-regulated democracy”⁶. Overall, the complete abolition of independent expenditures would return America to democracy, but the U.S. Congress must pass a bill, before the corporation-friendly campaign structure of today contaminates more elections.

Independent campaign expenditures and communications create a pseudo-democracy that is simply not a democracy, nor is it what earlier U.S. Supreme Courts and Framers had intended for America. Free speech may be a concern, but can never be a reason to marginalize the will of the people when it comes to choosing their representative in government. A ban on independent expenditures is the best way to further the interest of democracy and make the government more
responsive to the will of the people.

 

Works Cited (See indentations that are placed in chronological order):

 

¹Austin v. Michigan Chamber of Commerce. U.S. Supreme Court. 27 Mar. 1990. N.p., 2014. Web. 15 Apr. 2015. <http://scarinciattorney.com/wp-content/uploads/2014/07/Austin-v-Michigan-Chamber-of-Commerce.pdf>.

²“Bipartisan Campaign Reform Act of 2002.” Bipartisan Campaign Reform Act of 2002. Cornell Law School, n.d. Web. 15 Apr. 2015. <https://www.law.cornell.edu/wex/bipartisan_campaign_reform_act_of_2002>.

³McConnell vs. Federal Election Commission. U.S. Supreme Court. 10 Oct. 2003. Supremecourt.gov, 10 Dec. 2003. Web. 15 Apr. 2015. <http://www.supremecourt.gov/opinions/03pdf/02-1674.pdf>.

⁴Citizens United vs. Federal Election Commission. U.S. Supreme Court. 21 Jan. 2010. Supremecourt.gov, 21 Jan. 2010. Web. 15 Apr. 2015. <http://www.supremecourt.gov/opinions/09pdf/08-205.pdf>.

⁵First National Bank of Boston vs. Bellotti. U.S. Supreme Court. 26 Apr. 1978. Iandrinstitute.org, n.d. Web. 15 Apr. 2015. <http://iandrinstitute.org/New%20IRI%20Website%20Info/I&R%20Research%20and%20History/I&R%20Legal%20History/I&R%20and%20the%20Courts/Major%20Court%20Decisions/FNB%20v.%20Bellotti/Decision.pdf>.

⁶Dahl, Robert A. How Democratic Is the American Constitution? New Haven: Yale UP, 2001. 180-83. Print

⁷“Democracy.” N.d. Dictionary.com. Web. http://dictionary.reference.com/browse/democracy

⁸Justice Grimaces As Obama Criticizes Court. Perf. Barack Obama. YouTube. Associated Press, 27 Jan. 2010. Web. 15 Apr. 2015. <https://www.youtube.com/watch?v=k92SerxLWtc>.

⁹Lonergan, Raymond. Mr. Justice Brandeis, Great American. St. Louis: Modern View, 1941. 42. Print.

¹⁰Posner, Richard A. “The Incoherence of Antonin Scalia.” The New Republic, n.d. Web. 15 Apr. 2015. <http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism>.

¹¹Dr. Akhil Reed Amar. Perf. Akhil Reed Amar. Foreign Policy Association, 4 Nov. 2013. Web. 15 Apr. 2015. <https://www.youtube.com/watch?v=ceCq21LljE8>.

¹²Madison, James, John Jay, and Alexander Hamilton. “The Federalist- The Gideon Edition.” (2001): Lxxvi 177+. Liberty Fund Inc. Web. 15 Apr. 2015. <http://files.libertyfund.org/files/788/0084_LFeBk.pdf>.

¹³ Tyler. “How Can You Change an Amendment Once It Has Been Ratified?”Yahoo! Answers. Yahoo!, n.d. Web. 15 Apr. 2015. <https://answers.yahoo.com/question/index?qid=20101004194920AA1bd1u>.

¹⁴“Constitutional Amendment Process.” National Archives and Records Administration. National Archives and Records Administration, n.d. Web. 15 Apr. 2015. <http://www.archives.gov/federal-register/constitution/>.

¹⁵McCutcheon vs. Federal Election Commission. U.S. Supreme Court. 2 Apr. 2014. Supremecourt.gov, 2 Apr. 2014. Web. 15 Apr. 2015. <http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf>.

¹⁶McCutcheon vs. Federal Election Commission. U.S. District Court for the District of Columbia. 28 Sept. 2012. Bloomberg Law. Bloomberg L.P., n.d. Web. 15 Apr. 2015. <http://www2.bloomberglaw.com/public/desktop/document/McCutcheon_v_Federal_Election_Commission_893_F_Supp_2d_133_DDC_20>.

¹⁷Gewirtz, Paul, and Chad Golder. “So Who Are the Activists?” The New York Times. The New York Times, 05 July 2005. Web. 15 Apr. 2015. <http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?_r=0>