Campaign Finance Reform Case Study

Geneva Fairchild
Professor James Nguyen
Poli. 1, Tuesdays/Thursdays 11:30- 1:20pm
January 28, 2016
Part 1: Topic and outline
Topic: "Campaign finance reform and the Citizens United Case." The paper will discuss what campaign finance reform looked like prior to and following this case, as well as the reasons for unlimited spending on political activities being damaging to democracy. It will also discuss the ideas for reversing the Citizens United case, the steps taken towards this so far, and the likely outcome based on current evidence and events.
I. Introduction
In 2010, the decision made in Citizens United v Federal Election Committee case significantly "reshaped the business of politics" (Bai). It was determined that political spending is protected under the
First Amendment, this made Corporations "people" and their money "speech". the outcome of which is that spending on political activities by companies and unions could be "unlimited, so long as it is independent of a political party or candidate" (Briffault (c)).
II. Problem
(a) The result of the decision made in Citizens United is that huge amounts of money has been spent on financing Super PACs (Briffault (a)), which are "independent political committees" supporting a candidate with unlimited donations from individuals, corporations, or unions (Coates). The problem is that these Super PACs are only "nominally separate" from the candidates to which they provide support (Hasen). They have a lot of influence on the candidate, and therefore, politics. Their "Free Speech" outweighs that of the normal citizen. Also, due to a technicality in the disclosure rules of the case, donors can "remain anonymous for several months" (Levitt), and full disclosure can be completely avoided by Super PACs creating affiliated non-profit organizations under section 501(c)(4) of the United States Internal Revenue Code (Coates), the up side to this (for a candidate) is that the majority of this funding, sometimes referred to as "dark money," can remain concealed from public knowledge (Hasen). The problem does not seem to be with the fact that the amount of money spent on financing Super PACs is broad, but that in the fact that: ""Financing derives from a small group of wealthy contributors"(Sachs). This means that a relatively small group of rich contributors are able to influence the direction in which elections go (Briffault (b)), this leads to concerns that those contributors "will be able to influence the decisions of candidates" once they have been elected (Sachs).
(b) The Supreme Court is the primarily responsible for this, even though their decision was made in, what they say is: "a good-faith effort to promote transparency and prevent coordination" between campaigns/politicians and their financiers (Bai).
(c) The decision was made on the idea that Super PACs would be completely separate from the candidate themselves (Hasen), meaning that, "while they are unable to contribute to a candidate, they are permitted to run beneficial adverts about a candidate or detrimental ones about their opponents"(Sachs). The current rules allow Super PACs to get around restrictions blocking them from directly interacting with campaigns; "despite the fact they are often operated by members of a candidate"s inner circles" (Levitt).
(d) The conflict, is between the intended purpose of the decision in Citizens United and the actual outcome of the decision, is on one side, the justices of the Supreme Court and the political candidates their decision has advantaged, and, on the other side, anyone who opposes the decision, including interest groups, the media, and the public in general. This decision skews the power to rich and corporations, making them the most powerful "citizens" in the U.S.
(e) The argument is made that this change made by the Supreme Court in this case poses a serious threat to democracy (Bai; Briffault (c)), which has prompted the involvement of many interest groups to combat this decision.
III. Solutions
(a) Proposed solutions have been primarily legislative.
(b) Key players include:
(i) Politicians in support of the decision, such as Mitch McConnell and Ed Rollins, and those in opposition, such as Barack Obama, Russ Feingold, Alan Grayson, Donna Edwards, John Kerry, Leonard Boswell, John McCain, Sandra Everette, Rich Whitney, Ralph Nader, Olympia Snowe, Pat Choate, and Bernie Sanders;
(ii) Judges, including Chief Justice Roberts, Justices Kennedy, Scalia, Alito, Thomas, Stevens, Ginsburg, Breyer, Sotomayor, and Sandra Day O"Connor;
(iii) Interest groups in support of the decision, including: Citizens United (citizen"s control); The Heritage Foundation (free enterprise/limited government/individual freedom); The Cato Institute (individual liberty/limited government); The American Civil Liberties Union (individual rights and liberties), AND interest groups pushing for reform, including: Demos (democracy/equality); Brennan Centre (democracy/justice); Public Citizen (health/safety/democracy); The Center for Media and Democracy (democracy); Justice at Stake (judicial impartiality/fairness); Common
Cause (democracy); Public Campaign (clean elections/money), and;
(iv) Media outlets in support of the decision, including the San Antonio Express News, National review, and the Chicago Tribune, and those against, including U.S. News, the New York Times, and the Christian Science Monitor.
(c) The following legislative proposals have been made:
(i) A petition with "3 million signatures was submitted at a 2014 Senate hearing requesting a constitutional amendment to reverse the outcome of the decision, and 16 states have passed resolutions showing that they have the ability to ratify such an amendment" (Bai).
(ii) "The House Government by the People Act" has been proposed, which would initiate "a small-donor matching program" that would not include Super PAC funding, instead relying on "donations under $200 being matched partially by taxpayer donations"(Bai).
(iii) A similar bill, "the Fair Elections Now Act", has been proposed (Bai).
(d) The key players both in support and against Citizens United, and others who also feel strongly about the case, are arguing either against or for amending the decision of the case or introducing legislation to counteract its impact. Interest groups, like the ones listed earlier, are actively campaigning for and against the decision, most work has been done against the decision, who have pushed for, and done research into areas such as: "spending being out of control, the small number of individuals financing federal elections, the independence of PACs, and the worrying gap between what interest groups in support of the decision want and what the general public want"(Quandt).
(e) Efforts to fix the effects of Citizens United have been pretty unsuccessful. For example, Charles E. Schumer and Chris Van Hollen unsuccessfully proposed the "DISCLOSE Act" to undo the courts decision, which ended up failing in the Senate (Coates; Levitt).
(f) While not all efforts made to date or all proposed solutions have been listed here, it is clear that so far that the legislative measures proposed would help solve this problem, but the challenge is the same as that with any other current legislation, in that Congress is currently majorly Republican (Bai; Sachs; Hasen). It will therefore be essential moving forward to get certain Republic members of Congress to change their minds, and support new legislation that will combat the effects of the Citizens United case.

Works cited

Bai, Matt. “How much has Citizens United Changed the political game?” New York Times Magazine 17 July (2015). 44-49. Print.

Briffault, Richard (a). “Corporations, corruption, and complexity: campaign finance after Citizens United.” Cornell Journal of Law and Public Policy 12 (2010-2011): 643-685. Print.

Briffault, Richard (b). “Two challenges for campaign finance disclosure after Citizens United.” William and Mary Bill of Rights Journal 19 (2010-2011): 983-1002. Print.

Briffault, Richard (c). Non-profits and disclosure in the wake of Citizens United.” Election Law Journal: Rules, Politics, and Policy 10.4 (2011): 337-361. Print.

Coates, John.
“Corporate politics, governance, and value before and after Citizens United.” Journal of Empirical Legal Studies 9.4 (2012): 657-696. Print.

Cordis, Adriana. Jeff Milyo. Working paper: Do state campaign finance reforms reduce public corruption? Fairfax, VA: Mercatus Centre, George Mason University. Print.

Douglas, Spencer, Abby Wood. “Citizens United, States divided: an empirical analysis of independent political spending.” Indiana Law Journal 89.1 (2014): 315-372. Print.

Gerken, Heather. “The real problem with Citizens United: campaign finance, dark money, and shadow parties.” Marquette Law Review 97.4 (2013): 903-146. Print.

Hasen, Richard. “Citizens United and the illusion of coherence.” Michigan Law Review 109.4 (2011): 581-623. Print.

Levitt, Justin. “Confronting the impact of Citizens United.” Yale Law & Policy Review 29.1 (2010): 217-234. Print.

Quandt, Katie. How is Citizens United ruining democracy and how can we stop it? Moyers and Company, 22 January 2015. <http://billmoyers.com/2015/01/21/five-years-citizens-united/.

Sachs, Benjamin. “Unions, corporations, and political opt-out rights after Citizens United.” Columbia Law Review 112 (2011): 800-834.
Print.