Should Paper Companies Buy Elections?
The Supreme Court's January 2010 decision in Citizens United v. Federal Election Commission allows unlimited contributions from corporations to support political candidates. Caps remain on the amounts that corporations can give directly to candidates, but a corporation could, say, run an independent ad that explicitly encourages voters to support or reject a particular candidate. The upcoming November mid-term elections will be the first Congressional race under the new rules. Given the perception that the Republican Party is pro-business and anti-regulation, many observers expect a flood of corporate support for Republican candidates.
This decision leads to a number of questions:
Would you agree that this decision is a case of "judicial activism"? Citizens United overturns a number of court precedents as well as direct legislation from Congress. Until the five conservative justices saw fit to upend 100 years of jurisprudence, this area of campaign finance regulation was "settled law." If we really want to have a discussion about judicial philosophy and not just spew epithets, I think we need to acknowledge that judicial activism is a phenomenon of both the left and the right that occurs whenever a judge or a set of justices desire a different outcome than stare decisis requires.
Do you think that free speech rights should confer to corporations in the same way as actual human beings? The logic of the majority is that First Amendment to the U.S. Constitution gives "persons" the "the freedom of speech." Legally, corporations are "persons"; thus, they have the right to engage in electioneering activity. I don't buy it. Campaign ads are not speech, they are amplification of speech. I believe Congress has the authority to regulate the environment in which elections take place.
One element of campaign finance law upheld in the Citizens United case is the set of disclosure rules. Corporations that spend more than USD 10,000 to air election season ads have to report their principal contributors to the Federal Election Commission. Democrats are considering legislation that would impose even more stringent disclosure rules. For instance, one potential provision would require a chief executive to personally appear in ads to acknowledge their role. (Imagine an ad for a particular candidate that ends with "I'm John Faraci, CEO of International Paper, and I approved this message.") The Democratic proposal will call on corporations, and other organizations involved in political advocacy (including labor unions) to identify their donors and would ban ads from government contractors, foreign corporations, and TARP recipients (http://www.nytimes.com/2010/04/13/us/politics/13donate.html?hpw
). Would you support strengthened disclosure requirements?
Finally, what should pulp and paper companies do? If, for instance, one candidate supported a black liquor tax credit and another did not, would it be the fiduciary duty of the company to support the black liquor candidate?
I think the campaign finance system in this country is terribly broken. Candidates and elected officials (of all political stripes) devote substantial attention to fundraising efforts. This distracts them from actually serving the people and encourages them to be beholden to their financial supporters. I would support a rigorous system of public financing for elections at national, state, and local levels, which would encourage a contest of policy ideas rather than a contest of fundraising acumen. Republicans and Democrats alike bemoan the role of "special interests" in directing the public agenda. If there were less financial incentive to listen to these parochial concerns, perhaps government would be more responsive to the needs of living and breathing citizens and not corporate "persons."
I’ll take your questions one at a time. No, I don’t think this is judicial activism. Overturning 100 years of judicial activism is merely correcting the mistakes that were made by judicial activists. I prefer to call it correcting errors and mistakes and getting back to the Constitution as written.
The First Amendment applies to all “persons.” Corporations are a pile of legal papers that act like a person. If it walks like a duck and quacks like a duck, it’s a duck. Corporations should always have First Amendment rights, how else can they defend themselves from incorrect and inflammatory arguments made by human persons?
Giving Congress the authority of regulating the environment in which elections take place will allow Congress persons to perpetuate their own jobs. That is what Hugo Chavez has done — shut down the opposition. No, Congress should never be allowed to do this — it is far too important to leave to these characters. We need no more Congressional interference and repeal of what meddling they have already done in this area (unions have been running political ads for ages, with Congress’s blessing).
Your black liquor tax credit example demonstrates the fairness of the system. Paper companies that 100% recycle do not want a black liquor tax — it provides artificially low-priced competition for them. Do you want to prohibit these “green” companies from running ads against a black liquor tax?
Now, you know I will not be in favor of the government funding campaigns, as I am not in favor of most government funded matters already. What I am in favor of is a constitutional amendment that prohibits any candidate at any level spending any money on campaigns. In this day of modern, cheap communications, leaders can rise up from nothing. And good leaders should. The many news media (or is it medii?) can spend their own money covering the campaigns of the natural leaders who rise up from the masses this way. And there will be no corruption if no one can spend money promoting any candidate.
Basically, I am suspicious of all candidates. I have never bought this nonsense that any candidate is running to “serve my country.” Poppycock. Unless you are in a job where you run the risk of taking a bullet or being harmed (military, police, fire, etc.), in my book, you are not serving your country. More likely, you are someone from a dysfunctional childhood that has grown into a narcissistic, egomaniacal adult that thinks you ought to be ruler of the world. If you have disorders like that, you are driven to rise from the masses on your own. And don’t get me wrong, there are some great politicians that have risen from such roots — I know some of them personally and consider them friends.
I would not even let anyone spend their own money on a candidacy. For any money spent, by anyone, is spent with the idea of making more than is spent (hence my rejection of the “serving my country” lie). We have two great examples running around the country right now — one which I despise and one which I like — Al Gore and Sarah Palin. They are both making tremendous amounts of money off the office of vice president of the United States. And I don’t even resent them making piles of money; it is just the charade that they “want to serve their country” that makes me want to hurl.
Yes, the system is corrupt — on that we agree 100%. Your solution is to spend more government money, which we would have to borrow from the Chinese. My solution is to spend no money. I think mine will produce true, solid leaders in the Horatio Alger tradition that is so strong in the United States.
So, to answer your last question, we would not need to strengthen disclosure requirements with my plan, for there would be zero opportunities to do anything requiring disclosure.
A constitutional amendment that bans all campaign funding by anyone or anything would lead to government by celebrity. Absent a campaign, people known from other walks of life (famous or infamous) wield name recognition that "normal" candidates cannot possibly match. President Brittany Spears? No thanks.
Realistically, neither a strong public finance system nor unfinanced elections is on the horizon. Instead, thanks to Citizens United, we have a system where corporate power is unchecked.
We already have a template of what the future holds. In 2004, the CEO of Massey Energy, Don Blankenship, donated USD 3 million to support a (victorious) West Virginia Supreme Court candidate. That judge then voted to overturn a USD 50 million jury verdict against Massey Energy. It took a 5-4 decision in 2009 by the U.S. Supreme Court (with your favorite justices dissenting) to determine that a judge should recuse himself from a case involving someone who donated USD 3 million to the judge's campaign. A year later, Massey Energy is in the news again as the recalcitrant owner of a facility with myriad safety violations where 29 coal miners recently lost their lives. Citizens United encourages bullies like Massey Energy to buy elections. It was a bad decision.