Pandora's Piggy Bank - The Case for Citizens United

Citizens United v. Federal Election Commission gets a pretty bad reputation for being the landmark Supreme Court case that changed campaign financing into a rich man or woman's game. One of the main criticisms of Citizens United is that it opened the door to electoral funding that goes unchecked, heavily favoring candidates who are able to raise more money, and thus have a "louder" voice. The criticism is valid in that Citizens United allowed for the creation of groups known as SuperPACs to raise uncapped amounts of money and fund campaigns to any degree. What I want to talk about here is not the legitimacy of the Citizens United case going to the Supreme Court, that's another conversation for another day. I do however want to address whether the right decision was made once Citizens United was being argued in the Supreme Court, and why such a broad scope was necessary in the ruling. The majority decision in Citizens United was the lesser of two evils because of the style of argument the prosecution used to attack the Citizens United group.

Before addressing the decision itself, some background on how this case came to court is necessary. This all began with Hilary Clinton getting slammed harder than Monica Lewinsky by a movie intended to be released in D.C. right before the 2008 Democratic primaries. The movie, produced by lobbying group Citizens United, was pulled before airing by the federal government under legislation commonly known as the McCain-Feingold Act. The McCain-Feingold Act, formally known as the Bipartisan Campaign Reform Act of 2002, or BCRA, limited issue advocacy ads from airing within 30 days of a primary and 60 days of a general election. It also set federal limits on political action committees ability to raise money. Something to note is that within the BCRA there was a loose exemption for media and news organizations. This exemption however was not based in any specific logic or legal protection, but rather just stated that newspapers and similar organizations were able to continue to discuss issues, despite being funded to do so and usually having some level of political agenda. Citizens United sued, claiming their free speech was being oppressed. After many appeals the case was taken up by the Supreme Court in 2010, pitting the prosecution defending the logic of the BCRA, and Citizens United arguing first amendment violations and the unconstitutionality of the BCRA. The ruling was a narrow 5-4 decision in favor of Citizens United with Justice Anthony Kennedy authoring the majority decision of the court.

Once a case is taken by the Supreme Court of the United States a decision must be made. I am not here to discuss whether or not the case should have been taken by the court, I am here to discuss if the decision made protected our freedoms explicitly listed in the constitution. The implications of the Citizens United ruling are evident today. As soon as an elected official assumes his or her seat, they are already back out on the campaign trail, fundraising and talking about reelection. There is a major problem of the degree to which money influences politics, and Citizens United did exasperate that by taking federal limits off of those funds. This however is the world we live in. A world with Citizens United isn't that bad. We still have awareness of issues, laws are upheld to publish the sources of all campaign funds, and there is relatively even transparency and accountability in government before and after the ruling. The reason many people are critical of the Citizens United decision is that they never look to a comparative world where Citizens United would have lost the case, and the logic of the BCRA was upheld.

The first thing that I found striking about such a ruling was that the moderate-liberal Justice Anthony Kennedy authored the majority opinion. Many liberal figures were outspokenly critical of the Citizens United case, but not everybody reads a sixty-four page decision word-for-word and remembers all the details that may make them feel at-ease with the decision. The reason it was important to note the exemption about media earlier is that the BCRA legislation was not being defended in court, but rather the logic of the BCRA. That means that this becomes an all or nothing ballgame. A ruling against Citizens United would then make the media exemption clause in the BCRA unconstitutionalⁱ because it does not have any legislative basis. It is a baseless claim to protect media organizations from the stipulation that applies to groups of citizens attempting to gain political voice through pooling money.

It is crucial to note the important role media has in American society, and how it contributes to democracy. The Center for Democracy and Governanceⁱⁱ finds that the impact of media reaches to governance activities, accountability and relations of government to the people, checks on the judicial system, and free and fair elections. A decision against Citizens United would have severely threatened our first amendment rights, as well as put the media's liberties at risk. Aside from my word, there are a couple pieces of interest that can help one further examine the intricacies of the argument I am attempting to convey.

The Washington Times editorial staff published an opinion that seemed to side with Justice Kennedy. In the article they discuss the implications of a world under BCRA logic and go as far as to say "there would be no campaign ads, no issue ads, no independent efforts to register voters, and no independent studies released to try to influence public opinion.ⁱⁱⁱ" They acknowledge that though Citizens United may be bad, it is the lesser of two evils if we want to keep an informed and accurate electoral population. Today we still enjoy the privilege of free speech in all corners of politics, from the bully pulpit of our presidents to political ads about demon sheep and hog castration. These now air up until the days of elections themselves, all thanks to Citizens United.

On page 5 of the Court's opinion, Justice Kennedy writes that "under the antidistortion rationale [BCRA logic]*, Congress could also ban political speech of media corporations."^iv With the media playing such a crucial role in the democratic process of America, its suppression could be one of the most dangerous tools the government would have had available to go unchecked in their actions. This is not to say the government would exercise that course of action, however the fact that we would need to defend our free speech in court in of itself makes the founding fathers tremble in their graves. We avoided opening a pandora's box of threats to and suppression of free speech. A final question of this big debacle still to be addressed is why the scope of this case had to be so broad. I think both Kennedy and the Washington Times discuss this, but I will attempt to crystalize it. The only protection media organizations had between 2002 and 2010, under the active BCRA was an exemption clause that contradicted the logic of the rest of the bill. Because the constitutionality of the logic of the BCRA was being argued in court, and not the bill itself, there could be no defense made for the exemption clause because it was not being brought into question. This means that the ruling became an all or nothing decision as to allow free speech in the form Citizens United attempted to exact, or suppress all forms of media in relations to politics. When the court views it as such, I feel safer knowing that there's money in my politics than not knowing my politics at all.

This isn't to say that there are no problems with campaigning today. Many voters refer to this decision as a turning point to their disenfranchisement from the system. They will say that there is too much money in politics, or that it carries too much influence in what issues get addressed. All across the boards you will find people who will agree that the Citizens United v. FEC ruling did, in fact, exacerbate that issue. In hindsight though, it seems that damage to the faith of our electoral population was unavoidable. We have built up a system that has relied on money as free speech, we just never seemed to acknowledge it until recent years. Now that we have we must face the decisions we made and the society we built. We can be critical of it and acknowledge our mistakes, but it is our obligation to live in the world we built, where money, politics, and freedom of information all go hand in hand up the road to Capital Hill.

*Brackets inserted for clarity of text.

i  The National Review. "A Clear Danger to Free Speech". The National Review Editorial Staff. March 27, 2009. Accessed September 19, 2014. http://www.nationalreview.com/articles/227175/clear-danger-free-speech/editors

ii  Center for Democracy and Governance. [US Aid Federal Bureau] “The Role of Media and Democracy, a Strategic Approach,” June 1999. Accessed September 19, 2014. http://www.usaid.gov/sites/default/files/documents/2496/200sbc.pdf

iii  The Washington Times. "Citizens United Against Censorship” The Washington Times Editorial Staff. September 9, 2009. Accessed September 19, 2014. http://www.washingtontimes.com/news/2009/sep/9/citizens-united-against-censorship/

iv  Kennedy, Anthony. Justice of the Supreme Court. "Citizens United v. Federal Election Commission" Syllabus, October 2009 - January 2010. Accessed September 19, 2014. http://www.supremecourt.gov/opinions/09pdf/08-205.pdf