Sunday, December 9, 2012

PF Jan 2013 Citizens United - Background

For part one of this analysis, click here.

Campaign Finance

Running an effective political campaign in the US costs money.  There is travel, advertising, advisers to pay, and so on and depending on the office being sought or issue being advanced, the costs can be significant.  For House members the amount could be over one million dollars, for a Senator, ten times that amount and for a presidential candidate, 1000 times more.  That's over one billion for a presidential campaign.  State and local campaign finance is governed by local law so will have variations from state to state and locale to locale.  I think for the purposes of this analysis we should not attempt to explore these.  Since the resolution deals with a court ruling specific to national campaigns, I will limit the analysis to national campaign funding unless I find out later that debaters are expanding the issue.

Candidates who run for office have three primary sources for funding.  Obviously they can put up their own money and be self-funded.  They may also take public funds or private funds.  Public funding is provided by the government itself in the form of matching funds triggered when the candidate successfully raises at least $5000 in each of at least 20 states; so, $100,000.  When accepting public funds, spending limits are imposed by a formula in the legal statute which permits public funding.  Private funds are those which come from sources in the private sector such as individual contributors, corporations, organizations, etc.  The private sector donations are broken down into small, those contributing $200 or less and large, those who contribute more.  Again, there are limits established by law (statutory limits) on how much money may be contributed to the various campaign entities such as directly to the candidate, to the candidate's national party and the local party headquarters.

Campaigns are required by law to disclose the identities and affiliations of all contributors which are comprised of organizations or committees or other such groups.  They must also identify any individual donor who contributes more than $200.  In addition, they must report their expenditures especially any pay-outs to other individuals, groups, consultants and the like.  The Federal Election Commission, maintains these disclosures and they are available to anyone who wishes to see them.

It does get more complex because individuals are able to organize and bundle their funds in various legal ways. Regardless, all of these kinds of financing are direct funding in which the candidate's campaign receives funds to operate the various functions of campaigning: travel, advertising, renting sites, paying helpers and advisers and so on.  But there is another form of funding which is indirect and this is seen when an individual or group decides to spend money on their own to promote a candidate or cause.  For example, I could spend a bunch of my own hard-earned cash to print posters urging people to vote for John Stewart for President.  If John Stewart were running for president and had his own campaign organization up and running, they may be really grateful I did this but they would not be required to disclose it to the FEC (Federal Election Commission) because I did not give the money to them nor collaborate with them.  This form of indirect spending is really at the heart of this resolution.  How far can I go in promoting my candidate or issue not only in terms of spending but also in terms of content?  On the other hand, what if me and a few my friends organized ourselves and began to speak out against John Stewart as a candidate?

Political Action Committee

Individuals are allowed to make unlimited expenditures to support or oppose any political issue or candidate so long as those efforts are completely independent from the candidate and any campaign entities.  So, if I put up posters encouraging the election of John Stewart, I state on the poster it was paid for by me and John Stewart has not approved or endorsed it.  If I organize a group of friends to elect John Stewart the rules change.  When a group collects or spends more than $1000 to encourage voting for or against a candidate or issue in a national election, the federal government will classify that group a "political committee" also called a Political Action committee or PAC. There are four kinds of PACs.  Connected PACs are formed by corporations, unions and organizations, only take money from their members and are created to directly assist in a campaign.  Non-connected PACs are created by groups which have an ideological or social agenda and will endorse any candidate which best suits their agenda.  For example, the AARP (American Association of Retired People) is a powerful non-connected PAC which advances rights for elderly folks.  Leadership PACs are formed by congress-persons usually for the benefit of other candidates since the funds they attract cannot be used in their own campaigns.  They function as non-connected PACs.  All PACs are limited in how much money they can directly donate to a candidate or campaign organization but there is no limit on the amount they can spend for advertising in support of a candidate or issue.  Finally there is the independent expenditure-only PAC which are now known as super PACs.  These PACs are organized to operate completely independently of any other candidate group or party.  As independents they may spend unlimited funds on advertising and and may collect unlimited funds from individuals, corporations, unions, etc.  Super PACs are not allowed to coordinate their efforts in any way with any candidate campaigns.

Super PAC Genesis

In the beginning was the Taft-Hartley Act which completely barred unions and corporations from financially influencing political campaigns.  And the gubment saw that it was good until the unions created political action committees as a way to avoid the law.  So the gubment said, let us create a new law and another limb of the gubment to oversee the law and the gubment passed the Federal Election Campaign Act and created the Federal Election Commission in 1971.  This law required disclosure of contributions and expenditures and limited contributions by individuals and groups.  Just a short time later, the law was challenged in the case of Buckley v Valeo.  The plaintiffs asserted the provisions which restricted donations were a violation of the first amendment free speech laws.  The court upheld the provisions for disclosure, and the limits but did allow that individuals may have unlimited donations to their own campaigns. Direct contributions from corporations and unions remained forbidden, though their PACs could make limited collections.

Then in 2002, the gubment decided to pass a new bill, the Bipartisan Campaign Reform Act (BCRA)  also known as the McCain-Feingold Act which prevented national campaign committees from using money that fell outside of federal limits and ban what was called electioneering communications within 30 days of a primary or 60 days of a general election.  This effectively banned advertising or documentaries paid for by corporations or unions which mention a candidate. So now the stage was set for the great flood. 

The Flood Gates Open

Citizens United was founded as a political organization which mostly advocated conservative values of limited government, family unity and strong defense.  In 2004 they filed a claim with the FEC that the film Farenheit 9/11 violated the McCain-Feingold Act as a political advertisement aimed at defeating Bush in the presidential campaign.  The FEC did not agree so Citizens United then went in the documentary film business.  Later, they sought to air one such film, critical of Hillary Clinton which the FEC ruled was a violation of the McCain-Feinman Act.  Citizens United took it to court and the case was eventually appealed to the US Supreme Court as Citizens United v Federal Election Commission. As summarized by the Oyez Project of the Chicago-Kent College of Law:

"The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.

In a separate concurring opinion, Chief Justice Roberts, joined by Justice Alito, emphasized the care with which the Court handles constitutional issues and its attempts to avoid constitutional issues when at all possible. Here, the Court had no narrower grounds upon which to rule, except to handle the First Amendment issues embodied within the case. Justice Scalia also wrote a separate concurring opinion, joined by Justices Alito and Thomas in part, criticizing Justice Stevens' understanding of the Framer's view towards corporations. Justice Stevens argued that corporations are not members of society and that there are compelling governmental interests to curb corporations' ability to spend money during local and national elections."

Another PAC called SpeechNow filed a complaint to the FEC in 2008 claiming several provisions of McCain-Feingold violated their first amendment rights. In a ruling by the US District Court in Washington DC and based on the Citizen United decision, it was decided that limits on contributions to independent expenditure committees were unconstitutional. Basically this opened the flood for contributions and expenditures for these kinds of PACs which became called super PACs.

What It All Means

In the preceding, I gave a bit of history on how these things evolved which eventually lead to the framing of this resolution.  As a result of the Citizens United decision, we have seen unprecedented independent fund raising and expenditures in advertising aimed at influencing federal elections.  I have diminished or eliminated many of the details but tried to give a fairly complete overview of the events which resulted in where we are today.  The over-arching issue in this resolution is whether or not the Citizen United decision is bad for the election process in the US.  We get the message there are first amendment issues at stake if we restrict independent campaign expenditures for corporations and unions.  But, before we can determine what harms there are to the election process we need to understand, what is the "election process".

For information about the "election process", click here.

For links to other Public Forum debate topics, click here.


Federal Election Commission Laws

Federal Election Commission Citizens Information

Legal Information Institute
Citizens United v. Federal Election Commission (Docket No. 08-205)

1 comment:

  1. This is kind of beautiful.

    Thanks so much for everything!


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