INTRODUCTION
Professor of Law Erwin Chemerinsky is a distinguished expert on First Amendment Law at the University of California. He and other experts in law and politics say that Citizens United v. Federal Election Commission is “one of the worst decisions in recent times” (Chemerinsky, 2014, page 264).
Citizens v. Federal Election Committee (FEC) and led to massive increases in campaign spending that can degrade the influence of citizens upon government.
I have found the 1023 pages of these three books to be essential for exposing and explaining the long, often ugly, and complicated history behind Citizens United.
237 pages of The Campaign Finance Cases: Buckley, McConnell, Citizens United, and McCutcheon by Melvin I. Urofsky
469 pages of We The Corporations: How American Businesses Won Their Civil Rights by Adam Winkler
317 pages of Our Damaged Democracy: We The People Must Act by Joseph A. Califano, Jr.
This is my second blog on Citizens United, and it reveals the political forces over 200+ years which produced that sorry Supreme Court result.
There are five categories of problematic influences highlighted in ALL CAPS below.
ABOUT MONEY AND INFLUENCE
Money is a means to an end—any kind of end you can imagine. It’s countable, and in government most money can be traced as it goes from one place to another, pushing and shoving the “insight” and critical decisions.
In today’s world, MONEY is not a physical object like the precious metals gold and silver; those are old fashioned versions of what are now correctly labeled mediums of exchange. The American dollar is the world’s most reliable medium of exchange—whether in a hundred dollar bill or in a bank account as a digital number.
INFLUENCE over other people is primarily not a physical object. All of the following are types and/or causes of influence:
The role of a principal, teacher, or coach over a student
A child has influence over a parent because they are inherently wonderful and precious.
A boss has influence over his employees because he can hire and fire.
Spouses have influence over their partner spouse because of what they can give to the other—and, of course, what they can withhold from the other.
Voting for a politician is a form of usually anonymous influence. But giving money, even a small amount of $50, results in a politician’s acquiring your contact information and they definitely will solicit more contributions.
Like you and me, politicians have jobs. They represent us and are supposed to both listen to us and run the government. Like you and me, they usually want to keep their jobs until they get a better one. Members of the House earn $174,000 per year and Senators $193,000 per year (these are 2021 figures).
All Representatives face reelection every two years and Senators ever six years. It takes lots and lots of money to insure one gets re-elected. The president, representatives and senators work hard to get the most campaign contributions they possibly can.
Most members of Congress spend as much as half their time raising money for their re-elections; and congressmen are spending less time focused on legislation (Califano, 2018, 55-61 ). Interestingly, the more prominent the politician the more money he is expected to raise, not just for himself, but for helping other politicians and their political party apparatus. In the two years after Paul Ryan became Speaker of the House (the preeminent position of power) he traveled the country widely and raised sixty million dollars for the National Republican Congressional Committee (Califano, 2018, page 54).
Melvin Urofsky in The Campaign Finances Cases wrote, “It is true, of course, that politicians of all stripes, and especially conservatives, have never wanted anything to get between them and the money they need to run for reelection.” And he also wrote, that regardless of the attempts at campaign finance reform, “In every instance, even without court intervention, politicians and donors managed to get together. As Justice Sandra Day O’Connor put it in McConnell, “Money like water, will always find an outlet” (Urofsky, 2020).
ABOUT PRESIDENTS
Every American president has necessarily had the steady ambition and political skill to promote his agenda as better than that of his opponent. Such promotion requires pretending to be fair minded and respectful but most of the time attacking, undermining, and sarcastically minimizing the worth of the opponent’s program. All attacks are full of intentional misunderstandings, simple minded ideas, and often outright lies.
I have not read about any president who has actively supported campaign finance reform. Clinton flirted with the idea but it was not a priority on which he took action. President Nixon signed the Federal Election Campaign Act (FECA) into law in 1972 but it wasn’t out of integrity (he was the most criminal of modern presidents) and avoided impeachment because his own Republican Party demanded he resign, which he did).
George W. Bush did sign into law the Bipartisan Campaign Reform Act (BCRA) in 2002. He was noticeably non committal about it, however.
The most important contribution any president can make to election finance reform is in appointing open minded Supreme Court justices whose constitutional leanings are not conservative. Until about 2021, the last year of the Bill Clinton administration, the American Bar Association provided names of worthy candidates for Supreme Court justices. But then, according to Thom Hartmann, “[A] small group of petrobillionaires and their friends, helped fund the Federalist Society, which reached out to law students; found the most reliably conservative among them; and groomed them for future positions on federal courts, including the Supreme Court itself” (Hartmann, 2019, 156-157).
According to Hartmann, George W. Bush and especially Donald Trump favored the very conservative recommendations of the Federalist Society. George Bush’s nominees (John Roberts as Chief Justice and Samuel Alito) were all reliably conservative and were confirmed by the Senate. Donald Trump nominated three conservative justices, all of whom were confirmed by the Senate (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.)
ABOUT CORPORATIONS
Corporations are very important for understanding Citizens United v. FEC. They key, the full story can be found in Adam Winkler’s important book, We the Corporations: How American Businesses Won Their Civil Rights. Winkler wrote, “[Chief Justice] Marshall was saying that corporations were too ethereal to be the basis for constitutional rights and that, instead the court should focus on the corporation’s members” and that a corporation was “certainly not a citizen” (Winkler, 2018, page 65-66). Blackstone, the famous British legal scholar in 1758 described the corporation as an “artificial person” who “had a separate legal identity and certain rights, including property, contract, and access to court” (as found in Winkler, 2018, 399-400).
Corporations are a legal business arrangement designed to make the business a separate thing from its owners. It is formally called a “legal entity.” The detailed arrangements go in a legal document called a charter. A simple, but important illustration, is given below.
1. Before corporations were invented a Mom and Pop bakery would legally cease to exist as a business when the owners died. A corporation solves that problem.
An incorporated business continues on even if owners are incapacitated or die. When it’s created, as “The Mom & Pop Bakery,” it’s corporation’s value is divided into stocks, which can be bought and sold by other investors. The stock exists independently of Mom and Pop. When they spent $100,000 creating their bakery, they divided that hundred thousand investment into 10,000 shares. Then, to raise more operating cash, they could create and sell some more shares.
2. And if Mom and Pop were ever sued, they would be personally paying to defend themselves and would be liable to pay for any money judgment of the court.
Incorporating solves that problem because by law, “The Mom & Pop Bakery” has limited liability. Those who sue a corporation cannot get to Mom and Pop’s personal assets or to the personal assets of other stockholders. The corporation but not Mom and Pop and the shareholders can’t be sued. The corporation defends itself using money owned by the corporation and kept in its treasury.
3. “The Mom & Pop Bakery” is a separate legal entity with an official name. Because of this, it can do business in its own name, get into binding contracts, sue and be sued, and it pays taxes. If Mom and Pop decided to expand their business, “The Mom & Pop Bakery,” because of incorporation, could take out a loan in its own name.
Winkler’s startling research findings convincingly show that since the 1880s corporations and their promoters have been systematically and successfully influencing presidents, Congress, and the courts to acquire increasing civil and liberty rights. Even acquiring religious freedoms and exemptions via the Religious Freedom and Restoration Act (RFRA).
ABOUT THE HOUSE AND SENATE
They have colluded in failing to make any successful campaign finance reforms; and when there is a new law, it has been stripped of most enforcement mechanisms. However, to be fair, there seems to be improved tracking of the money flows.
The origins of campaign finance reform arise from one or more of:
Democratic or Republican president leading his Party or
House of Representatives or Senate
BUT AS SOON AS ONE OF THESE GETS SERIOUS ABOUT REFORM, OPPOSITION BEGINS TO DISABLE AND KILL OFF ANY ATTEMPTS AT REFORM.
In the early 1970s and early 2002 there was reform legislation passed: the Federal Election Campaign Act (FECA) and the Bipartisan Campaign Reform Act (BCRA). As soon as these acts were passed they were challenged in the courts and successful efforts were made to reduce their impacts. A dearth of stability to the laws! Important parts of the laws have been “gutted” by Congressional action or overturned by the Supreme Court.
Urofsky wrote that, “Finally, the federal and state laws aimed at regulating campaign finance all added up to nothing more than an exercise in futility. Although some of the more blatant and corrupt practices had been eliminated or at least marginalized, no mechanism existed to enforce the laws, nor, if truth be told, did government officials really want to do so. Both the Democrats and Republicans wanted and needed money to run their campaigns” (Urofsky, 2020).
ABOUT THE SUPREME COURT
The SCOTUS justices have the job of authoritatively stating what the law is, and in some cases they say what can’t be the law because it violates the Constitution. The cases which rise up through the Federal appellate courts and which get accepted for SCOTUS to decide—these cases have unique problems and high importance. They can’t be settled anywhere else.
The Citizens United v. FEC case was something of a mess at the Federal district court level. The issues were so complex and with so many incompatible components that the three District Court justices gave not one opinion but three! they tried very hard as shown by their very, very lengthy opinions.
In several points in his in depth study of campaign finance reform, Urofsky finds the Supreme Court to have a “lack of rigorous analysis” and “inconsistencies” (Urofsky, 2020,pages 44-45).
Urofsky: “[M]ost people agreed that the 1974 Federal Election Campaign Act (FECA) had been a dismal failure. Although providing better reporting of the dollars raised and spent, FECA had imposed no real control on campaign finance. If everyone accepted the fact of a broken system, little agreement could be found on how to fix it. Moreover, even if the system were in fact broken, that did not mean that everybody wanted it repaired “(Urofsky, 2020, page 65). Urofsky goes on to comment (page 72) that, “This ought not to be seen as a contest over who abused the system more, Democrats or Republican, because they both acted in gross disregard of the law.”
CONCLUSION
Superficially, the well-written prose of the Citizens United v. FEC opinion gives a first impression that the majority opinion and the dissent are both substantially correct! But that can’t be right, and it isn’t!
The writing of the majority and of the dissenters seems to make good sense, but when put side by side, it doesn’t match up at all.
The fundamental goals and methods of campaign finance reform are themselves in conflict. That conflict has spawned many 5-4 decisions to which are attached multiple concurring opinions-in-part and multiple dissents. Some of the campaign finance cases have come to SCOTUS in sets of opinions from judges who could not produce any majority opinion.
My opinion is that the Supreme Court hasn’t helped the campaign finance problems. Congress has so far failed at it. And the presidents don’t personally care because they usually have no problem fundraising.
Personally, I conclude that,ultimately, progress must come from Congress. Congress has the power to take away from SCOTUS the authority to act by utilizing the procedure of court stripping; Congress could divest SCOTUS of jurisdiction on the issue of campaign finance reform. John Roberts [prior to becoming Chief Justice] researched this for Reagan’s attorney general Ken Starr (Hartmann, 2019, pages 148-153).
Ideally, though, the three branches of government should have more loyalty to the American people than to just their own branch of government. And, they should have more loyalty to “We The People” than to “We The Corporations."
For references, see the relevant page on the powertomyvotes.com website.
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